Shutterfly Settles Privacy Battle Over 'Faceprints'

Shutterfly has reached an "agreement in principle" to settle a fight with Illinois resident Brian Norberg, who sued the company last year for allegedly violating a state privacy law by adding his "faceprint" to its database.

Shutterfly and Norberg informed U.S. District Court Judge Charles Norgle in Chicago of the settlement in court papers filed Monday. Norberg will resolve the case as an individual -- although he initially planned to seek class-action status -- according to the court papers. Other settlement terms were not revealed.

Once finalized, the settlement will resolve a lawsuit filed last year by Norberg. He alleged that his "faceprint" was added to Shutterfly's database after his picture was uploaded to the service, and tagged with his name, by someone else.

Norberg, who doesn't have an account with Shutterfly, argued that Shutterfly is violating the Illinois Biometric Information Privacy Act, which prohibits companies from storing people's "biometric identifiers" without their consent.

Norgle handed Shutterfly a significant early defeat late last year, when he rejected the company's argument that the Illinois law didn't apply to material derived from photos.

Shutterfly argued for dismissal based on the wording of the Illinois Biometric Privacy Act, which requires companies to obtain people's permission before collecting and retaining their fingerprints, retinal scans, and other biometric data including a "scan of hand or face geometry."

The company unsuccessfully contended that "face geometry" must be derived from physical, in-person scans -- and not from photos. Shutterfly's argument stemmed from a section of the law that defines the terms "biometric identifiers" and "biometric information." Specifically, the Illinois law excludes "photos" from the definition of "biometric identifiers." A separate definition of "biometric information" appears to go further by also excluding any information derived from photos.

Facebook is facing a similar lawsuit in federal court in the Northern District of California. Like Shutterfly, Facebook argues that lawsuit should be dismissed for several reasons, including that the Illinois law says it doesn't apply to photos.

Google also was recently sued for violating the Illinois privacy law. That case is currently pending in front of U.S. District Court Judge Edmond Chang in Chicago.

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