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Settlements mount in Illinois face biometric data privacy lawsuits

One reached and another insufficient as Onfido dismissal bid rejected
Settlements mount in Illinois face biometric data privacy lawsuits

Courts in the State of Illinois resolved and continued legal disputes over the use of face biometrics by Google, TikTok, and Onfido. Google looks to pay out a $100 million class-action lawsuit, while an objector argues TikTok’s $92 million settlement is insufficient. The courts also struck a blow against Onfido with a federal judge’s decision that the state’s privacy laws extend to face biometrics harvested from photos.

Google to pay out $100M in settlement

Tech giant Google will seek to resolve lawsuits filed by five named plaintiffs representing a proposed class over alleged violations of Illinois’ biometric privacy law with $100 million in settlement payments for residents of the state, according to the Chicago Tribune.

The dispute started when Google was accused of violating the Illinois Biometric Information Privacy Act (BIPA) with its face grouping tool on the Google Photos app which sorts faces by similarity. The law requires that companies acquire the consent of users before using such a technology, among other requirements.

The first lawsuit was filed in federal court on March 2016, and joined by two others in state courts in 2019. The remaining two were filed later.

If granted final order, Illinois residents who appeared in Google Photos from May 1, 2015 to the settlement’s preliminary approval may be eligible to receive anywhere from $200 to $400, according to attorneys. The five named plaintiffs are eligible for a $5,000 payment.

A spokesman for Google says Google Photo users in Illinois would be prompted to provide opt-in consent for face grouping in the coming weeks. The same change will be added across the U.S., he added.

A final approval for the settlement will be made in September, the Tribune reports.

The Google class-action lawsuit follows Facebook’s $650 million settlement. Approximately 1.6 million Facebook users in Illinois will soon receive a $397 check over Facebook’s alleged violations of biometric data privacy.

Claims rate cited as evidence TikTok settlement is too small

A plaintiff in an Illinois federal court has slammed a proposed $92 million settlement to resolve a dispute over allegedly illegal scanning and retaining of face biometric data as insufficient, according to Bloomberg Law.

Dennis Litteken filed an opposition to final approval of a class-action lawsuit that is currently in the U.S. District Court for the Northern District of Illinois due to claims that the 1.4 percent claims rate represents a deficient notice plan to class members and attorneys’ fees are too high. The latest objection document notes that Class Counsel set a goal of a 1.5 percent claims rate in negotiating a deal which includes attorneys fees of over $30 million.

“As recent trends in class action claims rates make clear, this poor showing is far below the double-digit participation rates that should have occurred had Class Counsel cared to put in the effort,” attorneys representing Litteken stated.

The objection raised over the proposed $92 million settlement between TikTok and a set of U.S. users including a subclass of Illinois residents continues an argument that began in March 2021, when objecting plaintiffs argued that the sum was “embarrassingly small”.

In 2020, TikTok was sued for allegations that the popular social media app scanned faces of its users, including minors, without their permission in a violation of BIPA.

Federal judge says face photos count as biometric identifiers in Onfido lawsuit

A U.S. federal judge denied a motion filed by Onfido to dismiss a lawsuit filed over its retention and use of face biometrics as argued by a plaintiff. The judge’s decision, published by Law360, rejects Onfido’s argument that the BIPA completely excludes biometric data drawn from photographs.

In 2020, plaintiff Freddy Sosa filed a complaint that Onfido compared and retained his face without his written permission in a violation of BIPA. Onfido sought to dismiss the suit, arguing the information Onfido collects from photographs and information derived from photographs is not protected by BIPA; that Sosa had not stated claims for liquidated damages because he had not alleged facts to infer that Onfido intentionally, recklessly, or negligently violated BIPA; and because BIPA violates the First Amendment.

The court however, found that while Onfido does not collect “biometric information” as laid out in BIPA, it does harvest “biometric identifiers” through photographs; thus, violating the biometric privacy law. The judge also disagreed that Sosa failed to allege facts to reasonably infer that that Onfido had intentionally, recklessly, or negligently violated BIPA, because they are demands for relief and are not “claims.”

Thirdly, the court stated that the BIPA is not a violation of the First Amendment because it does not restrict Onfido’s speech. And the judge argues that even if it did, that it would pass strict scrutiny.

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