Take-Two Fights 'Gotcha' Privacy Suit

Take-Two Interactive Software is asking an appellate court to refuse to revive a class-action lawsuit accusing the company of violating an Illinois privacy law by collecting faceprints of video game players.

The company argues that the alleged violations didn't result in any injury to Vanessa and Ricardo Vigil -- the brought and sister who brought the case.

"The Vigils’ case is part of a trend of 'gotcha' lawsuits hoping to monetize harmless -- and, at most, procedural -- violations of a privacy statute," Take-Two argues in recent papers submitted to the 2nd Circuit Court of Appeals. "Even though none of plaintiffs’ personal information was ever compromised, no home address, credit card, or driver’s license numbers were made public, and no one was even embarrassed, the Vigils seek hundreds of millions of dollars in class compensation to redress the defendant’s misdeed of creating a video game that allows the Vigils to insert a player into the game that looks like them."

The legal fight dates to October 2015, when the Vigils filed suit over the facial-scanning technology used in the game NBA 2K15. The Vigils alleged that game used their facial scans -- which were captured by the platform's camera -- in order to create avatars that represented them in the game.

The siblings claimed in a class-action complaint that Take-Two violated the Illinois Biometric Information Privacy Act -- a 2008 law that requires companies to obtain written releases from people before collecting biometric data like “face geometry,” and obligates companies to notify people about biometric data collection and publish a schedule for destroying the information.

Take-Two successfully argued to U.S. District Court Judge John Koeltl in New York that the case should be dismissed on the grounds that the Vigils didn't suffer any concrete injury as a result of any alleged violations of the Illinois law.

Last month, the Vigils asked the 2nd Circuit to reverse that decision and reinstate their lawsuit.

Take-Two is fighting that request. The company argues that the Vigils agreed to the scans, and that any alleged violations of the law -- such as the alleged failure to obtain the Vigils written consent to the collection of their biometric data -- were "procedural and hyper-technical."

"The Vigils ... sat in front of a camera, turning their heads slowly to the left and the right for nearly 15 minutes, as their camera scanned their faces," Take-Two argues. "Thus, what the Vigils complain about is not that their faces were scanned without authorization, but that -- despite their knowledge, consent, and active participation in the face scan -- Take-Two somehow nevertheless violated the technical requirements of [the Illinois law]."

The company adds that this type of alleged violation doesn't cause the type of concrete injury needed to support a lawsuit. The argument over whether the Vigils allegedly suffered a "concrete" injury stems from the Supreme Court's 2016 decision in a lawsuit brought by Virginia resident Thomas Robins against online data aggregator Spokeo. Robins alleged that Spokeo violated the federal Fair Credit Reporting Act by displaying incorrect information about him.

The Supreme Court said last year Robins could only proceed with his case if he could prove that any errors resulted in a "concrete" injury. Since then, judges around the country have struggled to determine what kind of injury is "concrete." Rulings have been mixed, but some judges have said that consumers can still proceed with lawsuits accusing companies of violating laws regarding robotexting.

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