An Illinois federal district court recently denied a request by online image publisher Shutterfly, Inc. and its subsidiary, ThisLife Inc., to dismiss a putative class action lawsuit alleging that the companies’ facial recognition-based system of photo-tagging violates the Illinois Biometric Information Privacy Act (BIPA). That law, which dates to 2008, prohibits companies from collecting and storing people’s “biometric identifiers,” including scans of face geometry, without their consent. The measure also obligates companies that gather biometric data to notify people about the practice, and to publish a schedule for destroying the information.

In the suit, the plaintiff claims he is not a registered Shutterfly user, but that his faceprint was added to the company’s database after his picture was uploaded to the online photo service, and tagged with his name, by someone else. The plaintiff alleged that since he is a non-member of the online photo service, he never formally consented to this collection of biometric data.

Shutterfly and ThisLife moved to dismiss, arguing that scans of face geometry derived from uploaded photographs are not “biometric identifiers” under BIPA because the statute specifically excludes information derived from photographs. The defendants interpreted the statutory language to mean that data about face geometry is only regulated when it originates from a “physical, in-person scan of people’s faces.” U.S. District Court Judge Charles Norgle disagreed, instead ruling that the plaintiff’s allegations fit within the confines of the statute:

“Here, Plaintiff alleges that Defendants are using his personal face pattern to recognize and identify Plaintiff in photographs posted to Websites. Plaintiff avers that he is not now nor has he ever been a user of Websites, and that he was not presented with a written biometrics policy nor has he consented to have his biometric identifiers used by Defendants. As a result, the Court finds that Plaintiff has plausibly stated a claim for relief under the BIPA.”

For a further discussion of the legal implications of biometrics in today’s society, click here.