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Microsoft biometric data privacy lawsuit from former Uber drivers returned to state court

Microsoft biometric data privacy lawsuit from former Uber drivers returned to state court

Some of the claims in a biometric data privacy lawsuit against Microsoft are being remanded to state court, after the plaintiff successfully argued a lack of federal jurisdiction. The ruling casts doubt on the effectiveness of the defense strategy of removing claims to federal court to face different criteria for standing.

Judge Gary Feinerman of the Northern District of Illinois wrote in the decision that the named plaintiffs arguing their own lack of standing in federal court under Article III presents “an uncommon twist on a common theme.”

The complaint brought by former Uber drivers alleges that Microsoft’s Face API was used by the ride-hailing company to perform a ‘Real Time ID Check’ using their face biometrics during onboarding. Microsoft did not gather written consent, or publish a data retention or deletion schedule, but did profit from receiving the data.

This does not, however, qualify as an ‘injury’ under federal law, and therefore does not give plaintiffs standing, while the same claims are considered sufficient to allege injury under Illinois’ Biometric Information Privacy Act.

State court will therefore hear claims under BIPA 15(a), which stipulates the publication of biometric data retention and destruction policies, and 15(c), alleging Microsoft profited from biometric data.

The court did note that Microsoft can try again to have the suit heard in federal court if an appeal allowed by the State Supreme Court in Tims v. Black Horse Carriers, Inc., which also addresses standing, is successful.

The case had been removed to federal court at Microsoft’s request in June of last year, Law Street Media reports.

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