Illinois Residents Ask Judge To Reject Google's Challenge To 'Faceprint' Law

Illinois residents who are suing Google for allegedly violating a state privacy law regarding "faceprints" are urging a judge to reject the company's argument that the state measure is unconstitutional.

"This argument is without merit," counsel for Lindabeth Rivera and Joseph Weiss say in court papers. They add that Google's compliance with the Illinois Biometric Information Privacy Act "poses no risk of burdening interstate commerce whatsoever."

The Illinois residents' papers, filed late last week, come in response to Google's contention that requiring online photo services to follow a state privacy law regarding "faceprints" would be unconstitutional.

The legal dispute dates to March, when Rivera alleged in a potential class-action that Google Photos unlawfully stores faceprints of "millions" of other state residents. Weiss later filed a similar lawsuit, which was consolidated with Rivera's.

They accuse Google of violating the Illinois Biometric Information Privacy Act, which requires companies to obtain written releases from people before collecting certain biometric data, including scans of face geometry. That measure, passed in 2008, also requires companies that gather biometric data to notify people about the practice, and to publish a schedule for destroying the information.

Rivera said in her complaint that she doesn't have a Google Photos account, but that photos of her were uploaded to the service after they were taken by someone else. Google "analyzed these photos by automatically locating and scanning plaintiff’s face, and by extracting geometric data relating to the contours of her face and the distances between her eyes, nose, and ears -- data which Google then used to create a unique template of Plaintiff’s face," she alleges.

Weiss says he has a Google Photos account and uploaded 21 photos of himself. He says Google used data from those photos to create a faceprint of him.

Google recently asked U.S. District Court Judge Edmond Chang to dismiss the case for several reasons, including that it has no way of knowing whether a photo depicts an Illinois resident. Therefore, Google argues, applying the Illinois law to photos would effectively regulate activity that doesn't have a connection to the state. The company argues that this result is unconstitutional, because only Congress can regulate interstate commerce.

"If BIPA is interpreted to apply to Google Photos, it would have the 'practical effect' of regulating conduct occurring entirely outside of Illinois," Google argued in court papers filed earlier this year. "It would also subject Google to inconsistent regulations and usurp the ability of other states to make their own policy choices regarding digital photos."

But Rivera and Weiss counter that Google should use IP addresses and "geo-tracking data" to refrain from collecting biometric data from photos uploaded from Illinois. "Google can determine whether a particular photograph is subject to the regulations of BIPA -- that is, whether a photograph is uploaded from within Illinois -- by analyzing whether an Illinois-based IP address is associated with the device uploading the photograph," they argue.

Chang has scheduled a hearing in the matter for August 2.

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