Illinois District court finds that improper collection and retention of face-scan measurements doesn’t constituted an injury-in-fact sufficient to meet Article III standing requirements



On December 28, 2018, Google won summary judgment in a class action alleging that the company handles images in violation of the Illinois 2008 Biometric Information Privacy Act (BIPA). According to the District Court, “plaintiffs have not suffered an injury sufficient to establish Article III standing and their claims are dismissed.”

In a (putative) class action against Google Photos, plaintiffs argued that Google took a scan of their facial geometry, without informed consent and in violation of BIPA. For purposes of the summary judgement, the parties agreed to defer argument on other issues, such as liability under the BIPA and whether face-scan measurements derived from a photo qualify as biometric identifiers (just like face scans that are done in person), and whether Google had obtained BIPA-compliant consent to collect or retain those face templates.

The district court only considered whether Google’s alleged improper collection and retention constituted an injury-in-fact sufficient to meet the U.S. Constitution’s Article III standing requirements. To this regard, the judge found that there was no genuine dispute that Google used the face templates solely to organize users’ own photos and had not shared them with any person or entity outside of Google. Plaintiffs only demonstrated “future potential uses of Google’s facial recognition technology.”

Plaintiffs “claimed injury to their privacy interests, but testified that they did not suffer any financial, physical, or emotional injury apart from feeling offended by the unauthorized collection.”

The district court found it lacks subject matter jurisdiction because Plaintiffs have not suffered concrete injuries for Article III purposes. It dismissed the case and granted Google’s motion for summary judgment.

The decision is important because it shows that companies could challenge subject matter jurisdiction if they can demonstrate that the alleged privacy violations do not result in any concrete injury.


Rivera v. Google is available at…                     Open PDF


More on privacy issues in biometric is available at…



For more information and assistance on privacy, data protection, and GDPR, Francesca Giannoni-Crystal and Federica Romanelli.