• by Wendy Davis  @wendyndavis, March 1, 2019

Google plans to ask federal appeals court to rule that a landmark Illinois biometric privacy law doesn't apply when the company uses facial recognition technology on photos.

The company briefly sketched out its plans in court papers filed this week with the 7th Circuit Court of Appeals, but hasn't yet filed a substantive argument in the high-stakes battle -- which could affect Facebook, Shutterfly and other companies facing lawsuits over facial recognition software.

The fight dates to 2016, when Illinois residents Lindabeth Rivera and Joseph Weiss sued Google for allegedly violating the Illinois Biometric Information Privacy Act by deploying facial recognition technology on photos uploaded by users.

That law, passed in 2008, requires companies to obtain written releases from people before collecting biometric data like fingerprints, voiceprints and scans of face geometry. The law provides for damages of up to $5,000 per violation.

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 then allegedly scanned the photos, extracted "geometric data relating to the contours of her face and the distances between her eyes, nose, and ears," and created a template of her face. Weiss alleged that he uploaded 21 photos of himself to his Google Photos account, and that Google used data from those photos to create a faceprint of him.

U.S. District Court Judge Edmond Chang in Illinois threw out the lawsuit earlier this year on the grounds that Rivera and Weiss didn't suffer any concrete injury from Google's alleged faceprint practices.

Rivera and Weiss then appealed that ruling to the 7th Circuit Court of Appeals. (The pair also are pursuing the same allegations against Google in state court.)

Google then filed its own “cross-appeal” to the 7th Circuit, where the company will argue that Chang should have dismissed the case for separate reasons -- including that the Illinois statute doesn't apply to face templates that were derived from photos.

The company previously argued to Chang that the Illinois law contains a provision excluding photos, and information derived from photos, in its definitions of biometric identifiers and biometric information. Google argued to Chang that those exclusions required dismissing the lawsuit.

Chang rejected that position, ruling that the law covers "scans of facial geometry" regardless of how they are created.

Google also plans to argue to the 7th Circuit that requiring online photo services to follow an Illinois privacy law is unconstitutional on the theory that only Congress can regulate interstate commerce.