Wilk v. Brainshark, Inc.
631 F.Supp.3d 522
N.D. Ill.2022Background
- Plaintiff Lori Wilk, an Illinois resident and former RQI employee, uploaded sales-presentation videos to Brainshark at her employer’s request.
- Brainshark provides AI-powered facial-mapping analytics that scans videos for face geometry and returns performance analysis to clients.
- Wilk alleges Brainshark scanned her face geometry from the uploaded videos, did not inform her or obtain written consent, and had no public retention/destruction policy as required by BIPA.
- She sued on behalf of herself and a putative Illinois class under BIPA §§ 15(a) and 15(b); Brainshark moved to dismiss under Rule 12(b)(6).
- Brainshark argued dismissal based on extraterritoriality, that videos are not biometric identifiers, lack of possession for §15(a), insufficient state-of-mind pleading for statutory damages, and a First Amendment challenge.
- The court denied the motion to dismiss, finding Wilk plausibly alleged BIPA violations and that the First Amendment claim failed as-applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Extraterritoriality (does BIPA apply?) | Wilk: totality of circumstances shows conduct occurred primarily/substantially in Illinois (resident, uploads, employer in IL, communications, reports returned to IL) | Brainshark: BIPA lacks extraterritorial reach and no alleged Brainshark actions occurred in Illinois | Denied dismissal; factual, fact‑intensive inquiry at pleading stage — allegations suffice to proceed |
| §15(b) — collection of biometric identifiers | Wilk: Brainshark scanned face geometry from videos; scans are biometric identifiers requiring written consent | Brainshark: It only collected videos/photographs, which are not biometric identifiers or are excluded | Held: face-geometry scans qualify as biometric identifiers; §15(b) plausibly alleged |
| §15(a) — possession and policy requirement | Wilk: Brainshark had dominion/control (accessed uploads, scanned/analyzed, produced reports) | Brainshark: Plaintiff alleges collection only, not possession or control | Held: allegations permit reasonable inference of dominion/control; §15(a) plausibly alleged |
| State of mind for statutory damages | Wilk: need not plead specific mens rea at pleading stage; seeks injunctive and other non-monetary relief too | Brainshark: Plaintiff failed to plead negligent, reckless, or willful conduct required for monetary damages | Held: Pleading need not establish mens rea to survive 12(b)(6); claims survive (monetary relief may require proof later) |
| First Amendment (as-applied) | Wilk: §§15(a),(b) regulate collection/access to biometric info, not speech; restricting access to information is not speech | Brainshark: BIPA restrains commercial speech (use/disclosure) and is content-based | Held: As-applied challenge fails — §§15(a),(b) limit access/collection, do not regulate speech under Dahlstrom; no constitutional infirmity reached |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (establishing the federal plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (applying and elaborating Twombly plausibility principles)
- Avery v. State Farm Mut. Ins. Co., 835 N.E.2d 801 (Ill. 2005) (extraterritoriality analyzed via totality-of-circumstances)
- Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937 (7th Cir. 2015) (restricting access to information does not alone implicate the First Amendment)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (distinguishing laws that regulate use/disclosure of information from mere access restrictions)
- In re Facebook Biometric Information Privacy Litigation, 185 F. Supp. 3d 1155 (N.D. Cal.) (face scans from uploaded images can create biometric faceprints)
- BBL, Inc. v. City of Angola, 809 F.3d 317 (7th Cir. 2015) (BIPA provides multiple remedies)
- Morrison v. YTB Int’l, Inc., 649 F.3d 533 (7th Cir. 2011) (extraterritoriality inquiry is fact-intensive)