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Amazon told to stay put in court; Microsoft might escape BIPA case

Amazon told to stay put in court; Microsoft might escape BIPA case

There is greater clarity today regarding a key provision of the state of Illinois’ biometric privacy law, landmark legislation in the United States.

Two putative class actions, one involving Amazon and the other Microsoft, had sought to convince a judge that the companies had not “otherwise profit from” facial photos gathered online without getting plaintiffs’ permission. Only one of the companies likely is happy with the clearer legal interpretation.

Illinois’ Biometric Information Protection Act holds that people own their biometric identifiers and cannot be collected without express permission and without informing the owners of how their data will be managed. The law takes particular aim at entities that try to profit from what the law says is not their property.

It has been argued that vacuuming facial images online for use in making algorithmic products better, more profitable or generate more revenue is a BIPA violation.

A U.S. District judge in Seattle has rejected Amazon’s motion to dismiss (Vance et al v. Amazon, western district of Washington, case 2:20-cv-01084) its lawsuit, according to reporting by the news service Reuters.

Amazon has used biometric identifiers – or commercial innovations made possible by having them — it took from photo-sharing social site Flickr, the court ruled, because they were used in products it sells. In fact, the judge said, the identifiers were so intrinsic to Amazon products that “it is commercially disseminating the biometric data.”

Microsoft survived the challenge, though it is not yet done with Vance et al v. Microsoft, case 2:20-cv-01082, being heard in the same court, before the same judge.

The judge acknowledged the plaintiffs’ (also the same between the cases) allegation that Microsoft benefited from use of the identifiers. But Microsoft did not share collected data in its own products.

The plaintiff’s claim was dismissed but they have been allowed to return with an amended claim.

Both Microsoft and Amazon where granted summary judgment in October.

The Flickr images were originally collected by IBM.

Its Diversity in Faces dataset was intended to reduce demographic differentials or bias in biometric systems, as IBM fellow and manager of AI tech John Smith told Biometric Update at the time, but has arguably done more to advance the incomes of data privacy attorneys.

Microsoft has not been as comparatively fortunate so far in another BIPA case involving Uber.

Amazon’s BIPA strategies and travails can be monitored here.

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