Vimeo Asks Judge To Send Fight Over Facial Recognition To Arbitration

An Illinois resident has no right to proceed with a federal class-action lawsuit against Vimeo over allegations that its Magisto app violates the state's biometric privacy law by collecting “faceprints,” the company argues.

Instead, any complaints about Magisto belong in arbitration, and can only be brought on a case-by-case basis, Vimeo says in papers filed Friday with U.S. District Court Judge Matthew Kennelly in the Northern District of Illinois.

Vimeo's argument come in response to a lawsuit filed in September by Illinois resident Bradley Acaley.

He alleged in a class-action complaint that the Magisto app, purchased by Vimeo in April for a reported $200 million, violates the Illinois Biometric Information Privacy Act. That 10-year-old law requires companies to obtain written releases from people before collecting “face geometry” and other biometric data. The measure provides for damages of up to $5,000 per violation.

Acaley said he downloaded Magisto in December of 2017, and purchased a one-year subscription for $120. He uploaded photos and videos of himself and his family to Magisto, and then used the service to edit the material, according to his complaint.

He claimed that the app analyzed his videos and photos by automatically scanning his face and extracting geometric data.

Vimeo has denied the allegations. The company stated when the lawsuit was filed that Magisto uses "machine learning technology to help identify objects within video frames,” but does not collect facial-recognition data.

The company says in its new court papers that the matter should be sent to arbitration, arguing that Magisto's terms of service effectively prohibit consumers from bringing lawsuits in court. The company also says its terms of service also ban consumers from proceeding as a class in arbitration.

“Plaintiff’s claim falls well within the ambit of the arbitration clause,” Vimeo writes.

Lawyers for consumers tend to prefer bringing privacy lawsuits in federal court as class actions, where damages can be aggregated. Proceeding in arbitration instead of court, and on an individual basis instead of as a class, can be prohibitively costly for consumers or their lawyers.

Some other companies sued over alleged privacy violations have convinced judges to order arbitration. In one high-profile example, a federal judge in Maryland recently granted requests by AT&T, T-Mobile, Sprint and Verizon to compel arbitration of disputes over their alleged disclosures of customers' location data.

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