On Monday, consumers argued that Microsoft Corporation’s bid for summary judgment in a privacy suit concerning the use of photos for facial recognition is “premature” and should be denied or struck without prejudice. The plaintiffs explained that they have not been able to obtain the evidence needed to refute the company’s motion and need a six-month extension.
The July 2020 class action claims that Microsoft used the plaintiffs’ photographs to improve its facial recognition technology without their consent in violation of the Illinois Biometric Information Privacy Act (BIPA). The litigants are Illinois residents who, starting in 2008, uploaded photos of themselves to the photo-sharing website Flickr.
Flickr’s parent company Yahoo! made the photos accessible in a publicly available dataset, of which International Business Machines Corporation (IBM) selected one million images to create another dataset called Diversity in Faces in an attempt to reduce bias in facial recognition, but without the photographic subjects’ consent. As a side note, one of the same named plaintiffs has also sued IBM.
Microsoft reportedly applied for and downloaded the dataset from IBM, then used it to improve the fairness and accuracy of its facial recognition products. “Among these products are its Cognitive Services Face Application Program Interface and its Face Artificial Intelligence service that allow customers to embed facial recognition technology into their applications,” the court’s motion to dismiss order said.
After the court permitted some of the plaintiffs’ claims to proceed, the plaintiffs moved for class certification in October 2021, and in December, the defendant moved for summary judgment.
This week’s motion asked for relief pursuant to Federal Rule of Civil Procedure 56(d), which permits a non-movant to ask the court to delay decision until it has the necessary facts. According to the plaintiffs, Microsoft agrees that they are entitled to some discovery. As support, they cite Microsoft’s non-objection to the plaintiffs’ proposed deposition of certain witnesses who submitted declarations in support of summary judgment.
The filing also argues that Microsoft raises legal defenses to which the plaintiffs cannot adequately respond because they lack the underlying facts to do so.
For example, and with regard to Microsoft’s extraterritoriality defense, the plaintiffs say they need to develop facts regarding the company’s Illinois conduct. They explain that because they cannot predict how the court will apply a fact-intensive, multi-factor extraterritoriality test, the requested discovery is essential to their case.
The plaintiffs are represented by Loevy & Loevy and Carlson Lynch. Microsoft is represented by Morgan, Lewis & Bockius LLP and Davis Wright Tremaine LLP.
