Google can depose Texas in biometric data privacy lawsuit after partial appeals win

Google will be allowed to depose Texas as it defends itself in a lawsuit brought by the state, but not the Office of the Attorney General.

The appeals court voted two to one to approve the deposition of the state, overturning a decision by a Victoria County trial court, but partially upheld the decision of another in Midland County to block the deposition of the AG’s office. “The scope and parameters of those depositions” will be decided by their respective trial courts.

The tech giant is accused in the Midland case of violating the state’s Capture or Use of Biometric Identifier Act (CUBI) by collecting biometrics from users of Google Photos, Google Assistant and Nest Hub Max. In the Victoria case, Google is accused of violating the Deceptive Trade Practices Act by collecting location data. It could be forced to pay up to $25,000 per violation through CUBI.

Google sought depositions on 18 different topics in the Midland case, and 32 topics in the Victoria case.

The claim under the Deceptive Trade Practices Act has been thrown out since the appeal of the trial court’s deposition ruling, however. Texas lacks the jurisdiction to pursue the suit, the Thirteenth District Court of Appeals says, as reported by Fox 26 Houston.

The state’s attorneys had argued that Google was trying to “investigate the investigator,” and that as a sovereign entity, it does not fall within the scope of Rule 199 of the Texas Rules of Civil Procedure. The rule allows deposition of “any person or entity,” and elsewhere specifies the inclusion of any “governmental agency” and any “other organization,” leading to the appellate court’s decision.

“In short, although it may have had legitimate grounds for claiming Google’s deposition request and the topics listed were duplicative or implicate privileged topics, the State failed to sufficiently prove its objections to at least some of Google’s deposition topics,” the ruling states (via Reuters). “Instead, it relied on its sweeping claim that it never has to sit for a deposition in an enforcement action, even though it admits that some of the deposition topics are relevant to its lawsuit against Google.”

The Office of the Attorney General, on the other hand, is not actually a named party in the lawsuit.

The dissenting appeals judge argued that Google has other means available to collect the same information, and therefore no need to depose the state.

Google has also subpoenaed Clearview AI in the case to use Clearview’s state contracts in its defense.

2 BIPA cases settled

Another tech giant, Amazon, has settled a proposed class action suit over its collection of face biometrics to customize video game elements, Law360 reports.

The suit was premised on the allegation that the teen did not know his biometrics were being collected or provide consent as required by Illinois Biometric Privacy Information Act (BIPA). Amazon provided cloud services for the maker of video game NBA2K.

The terms of the settlement were not disclosed.

Also in Illinois, truck driver monitoring provider Lytx will pay $4.25 million to settle claims against it under BIPA.

Bloomberg Law reports the total will be split evenly between defendants in Illinois and those outside it. The settlement has received initial approval in federal court.

Article Topics

biometric data  |  biometric identifiers  |  Biometric Information Privacy Act (BIPA)  |  biometrics  |  CUBI  |  data privacy  |  Google  |  Texas