238 F. Supp. 3d 1088
N.D. Ill.2017Background
- Rivera and Weiss (Illinois residents) allege Google Photos automatically uploaded photos taken on Google Droid devices in Illinois and immediately generated “face templates” that map facial geometry without consent.
- Plaintiffs claim those templates were used to organize and analyze photos (including inferring gender, age, race, location) and that Google failed to provide required written notices or retention/destruction policies under the Illinois Biometric Information Privacy Act (BIPA).
- Plaintiffs sued Google under BIPA for unauthorized collection/storage of biometric identifiers and biometric information and for failure to publish a retention/destruction policy; Google moved to dismiss under Rule 12(b)(6).
- Google argued (1) BIPA does not cover biometric measurements derived from photographs, (2) applying BIPA here would be extraterritorial because the scanning may have occurred outside Illinois, and (3) Plaintiffs’ construction would violate the Dormant Commerce Clause.
- The court accepted the complaints’ factual allegations for purposes of the motion and denied Google’s motion to dismiss, holding Plaintiffs adequately stated plausible BIPA claims and that factual development (discovery) is needed on extraterritoriality and Commerce Clause issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether face-geometry templates generated from photos qualify as a BIPA "biometric identifier" | Face templates are scans of face geometry — explicitly listed in BIPA — so they are biometric identifiers regardless of being derived from photographs | Photo‑derived measurements are not covered; BIPA meant to cover in‑person scans, and "photographs" are excluded in definitional text | Held: At pleading stage, templates plausibly fit BIPA’s definition of "scan of face geometry"; claim survives dismissal; factual record may later show otherwise |
| Whether information derived from photographs is excluded from "biometric information" because "photographs" are listed in the definitional exclusions | BIPA’s definition of "biometric information" covers information based on biometric identifiers; plaintiffs do not treat photographs themselves as identifiers | Google reads the ‘‘do not include’‘ list to bar any identifier or information derived from photographs | Held: Court rejects Google’s structural reading; the photograph exclusion does not defeat Plaintiffs’ allegations that the derived face templates are biometric identifiers or that derived information is covered |
| Whether BIPA would be impermissibly extraterritorial (i.e., statute cannot reach conduct outside Illinois) | Plaintiffs allege uploads and alleged failures to obtain consent occurred while devices/IPs were in Illinois, tipping the Avery factors toward in‑Illinois conduct | Google contends the scans may have occurred outside Illinois and BIPA has no extraterritorial intent; therefore claims should be dismissed now | Held: Court declines to resolve on motion to dismiss; BIPA has no extraterritorial intent as a matter of law but factual questions (where scanning/consent occurred) require discovery |
| Whether applying BIPA as Plaintiffs propose would violate the Dormant Commerce Clause | Plaintiffs: enforcement is valid against conduct tied to Illinois as alleged; burden is not shown at this stage | Google: Plaintiffs’ reading would control out‑of‑state conduct and impose nationwide compliance burdens, possibly conflicting with other states | Held: Court postpones constitutional analysis until factual development; Commerce Clause concerns depend on discovery about scope and burdens of compliance |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must be plausible to survive dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (only factual allegations are assumed true on Rule 12(b)(6))
- Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100 (Ill. 2005) (transaction occurs in Illinois only if circumstances "primarily and substantially" occur in Illinois)
- Healy v. Beer Inst., 491 U.S. 324 (Dormant Commerce Clause bars state laws that control commerce wholly outside state)
- Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175 (Dormant Commerce Clause principles)
- Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (state statutes that discriminate or directly regulate interstate commerce)
- Midwest Title Loans, Inc. v. Mills, 593 F.3d 660 (7th Cir.) (extraterritorial state regulation invalid without balancing)
- Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628 (6th Cir.) (extraterritoriality in Commerce Clause context)
- Pac. Merch. Shipping Ass’n v. Goldstene, 639 F.3d 1154 (9th Cir.) (Commerce Clause prohibits state regulation of commerce wholly outside borders)