Court Denies Most of IBM’s Motion to Dismiss in Biometric Data Suit

On Tuesday, Northern District of Illinois Judge Charles P. Kocoras signed an order partly granting International Business Machines Corporation’s (IBM) motion to dismiss Illinois Biometric Information Privacy Act (BIPA) violations alleged by a putative class of Illinois residents. The plaintiffs’ second amended complaint contended that IBM, a multinational technology company, illegally obtained, used, and disseminated their biometric information, specifically their facial geometry, without meeting the law’s strictures.

The plaintiffs argued that IBM acquired their unique biometric identifying information via photographs they uploaded to Flickr, a photo-sharing service. Allegedly, Flickr shared a dataset of 99 million photos with IBM who then created its own data set and reportedly, “extracted 68 key-points and at least ten facial coding schemes, such as craniofacial distances, craniofacial areas, craniofacial ratios, facial symmetry, facial regions contrast, skin color, age prediction, gender prediction, subjective annotation, and pose and resolution.”

Further, the plaintiffs averred that IBM then disseminated a derivative dataset, and that each image therein “could allegedly be traced back to the individual Flickr account to which it was originally uploaded.” The plaintiffs contended that these actions infringed on the sanctity of their personal identifying information and privacy, and in turn charged IBM with six BIPA violations,  unjust enrichment, and made a claim for injunctive relief. 

The plaintiffs first asserted that “IBM did not establish a publicly available retention schedule and guidelines for destroying biometric information in violation of Section 15(a) of the Illinois Biometric Information Privacy Act.” Based on circuit precedent, Judge Kocoras considered whether this violation was “sufficiently substantive to qualify as an injury for purposes of standing under Article III of the U.S. Constitution.”

The court ruled that this allegation did not create a concrete injury as required by Article III because “Section 15(a) is procedural and does not create such an injury,” unlike BIPA Section 15(b), which is considered a substantive violation sufficient to confer constitutional standing. Thus, the court dismissed this claim for lack of subject matter jurisdiction. The court also dismissed the plaintiffs’ injunctive relief claim after determining that it was not a properly founded cause of action. 

The defendant also challenged the plaintiffs’ claims on bases that the extraterritoriality doctrine and dormant commerce clause barred them. The court rejected these arguments as premature. In so holding, the court agreed with the plaintiffs that such questions were better resolved at a later stage of the litigation because more facts were needed “in order to determine to what extent IBM’s alleged acts occurred in Illinois.”

The court also rejected IBM’s argument that “BIPA expressly excludes photographs and biometric information derived from photographs.” In so ruling, Judge Kocoras agreed with the plaintiffs’ argument “that courts have held that conduct similar to IBM’s alleged conduct has been held to not be barred by BIPA’s photograph exclusions.” Though IBM argued that the decisions cited by the plaintiffs were wrongly decided, the court concluded that “IBM has not offered any persuasive arguments to convince us.”

The same named plaintiffs and counsel filed a class action lawsuit against Microsoft Corporation for BIPA violations arising from a similar body of facts earlier this year. Microsoft’s motion to dismiss is currently pending in the Western District of Washington case. 

The plaintiffs are represented by Loevy & Loevy and Carlson Lynch, and IBM by Quinn Emanuel Urquhart & Sullivan.