Amazon’s Bid to Stay Facial Recognition Technology Suit Rejected in College Student’s Class Action

Earlier this week, a federal judge sitting in Seattle, Wash. declined defendant Amazon Web Service’s (AWS) request to stay discovery in the Illinois Biometric Information Privacy Act (BIPA) suit brought by an Illinois college student. The order said that there was no basis to pause the dispute under guiding law.

As previously reported, the student sued AWS after she took multiple remote exams while attending two higher learning institutions in Illinois. Both colleges used a proctoring software developed by ProctorU Inc., which required the plaintiff to submit her image as well as an image of a valid identification document in order to take the exams. Non-defendant ProctorU then used AWS’s facial recognition program Rekognition to analyze and compare the plaintiff’s images to verify her identity.

The suit stated claims on behalf of all others whose biometric data Amazon collected without consent and claims for its failure to publish a “publicly-available retention and deletion schedule.” 

Amazon moved to dismiss the suit and also to pause proceedings until the court ruled on its motion to dismiss or until another case with “substantial overlap” either resolved, completed discovery, or that court ruled on that motion to dismiss.

In this week’s opinion, Judge John H. Chun advised that courts posed with these questions “take a preliminary peek at the merits of the dispositive motion to assess whether a stay is warranted.” 

In the court’s assessment, the motion did not raise threshold, non-merits questions such as jurisdiction or immunity of a defendant that warranted a stay. In addition, Judge Chun said several of the plaintiff’s arguments and AWS’s defenses require fact-based analyses that discovery would inform. 

“For example, the parties dispute whether Plaintiff’s claims violate the extraterritoriality doctrine, which implicates the factual question of whether Defendant’s alleged violations occurred primarily and substantially in Illinois,” the order said.

Judge Chun added that “the Court is not convinced that Defendant’s Motion to Dismiss will prevail and, accordingly, dispose of the case,” noting that several other actions have been filed in the same district challenging the collection of biometric information under BIPA. In those cases, similar dismissal arguments were rejected, the opinion said.

Carson Noel PLLC, Edelson PC, Bursor & Fisher P.A., and Carney Bates and Pulliam PLLC are counsel for the plaintiff while Perkins Coie LLP represents Amazon.