The U.S. Court of Appeals for the 2nd Circuit recently upheld a district court decision dismissing a putative class action filed by two plaintiffs against the maker of the NBA2K videogame series. The plaintiffs alleged five violations of the Illinois Biometric Information Privacy Act (BIPA). The district court dismissed plaintiffs’ claims for lack of Article III standing, and the plaintiffs appealed.
The BIPA was enacted in 2008, but there has been a recent increase in BIPA-related litigation as more companies collect biometric data. The statute governs the collection, storage, and dissemination of “biometric identifiers” and “biometric information” by private entities. A “biometric identifier” is a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry, and “biometric information” is information based on “biometric identifiers.” A private entity must provide notice in writing that a biometric identifier is being collected or stored. The statute also requires that private entities use the reasonable standard of care within their industry to protect biometric data in their possession while it is being stored or transmitted.
In this case, plaintiffs claimed that Take-Two violated the notice and data security provisions of the BIPA. Take-Two included a feature in its NBA2K15 and NBA2K16 video games that allowed players to use personal cameras to scan their facial geometry and use it to create an avatar for gameplay. Prior to creating this avatar, the gamer had to agree to the following terms and conditions on the viewer’s screen:
“Your face scan will be visible to you and others you play with and may be recorded or screen-captured during gameplay. By proceeding you agree and consent to such uses and other uses pursuant to the End User License Agreement.”
Despite agreeing to these terms, plaintiffs claimed they did not provide informed consent for the collection and use of their biometric data, and further argued that Take-Two did not properly protect the biometric data it collected.
District Court and Appellate Court Agreed on the Illinois Biometric Information Privacy Act Law Suit Dismissal
The district court dismissed plaintiffs’ claims for lack of standing, and the appellate court agreed. The appellate court acknowledged that there were procedural violations of the BIPA by Take-Two, but found that none of the alleged procedural violations raised a material risk of harm to the interest that the BIPA was designed to protect. The court noted that although Take-Two did not inform plaintiffs how long their data would be held, or inform them of how the data would be destroyed, the plaintiffs did not allege that either Take-Two’s internal policies or actions violated the statute. Similarly, while plaintiffs alleged that Take-Two’s data security measures were inadequate, the Court noted that plaintiffs did not allege that these violations raised a material risk of harm that the data would be improperly accessed.
This case is another in a growing collection of data privacy cases disposed of based on a lack of Article III standing following the United States Supreme Court’s ruling in Spokeo. It is also an example of the increasing number of cases alleging violations of statutes that address the collection and use of biometric data. The defendant in this case was able to avoid any liability despite the court finding that it had violated the applicable statute; however, it is important not to disregard the procedural requirements of these laws. When collecting personal data, including biometric data, great care should be taken to ensure that actions comply with all applicable rules and regulations to protect not only the interests of your company, but also to protect the interest of the individuals who have provided the data.
If you have any questions regarding cybersecurity law or data privacy litigation, or rules and regulations pertaining to the collection and use of biometric data, please contact Tim Hayes at McKenna Storer.
“McKenna Storer gives excellent representation; available on short notice. I would recommend and use them again.”
“McKenna Storer has represented me in several malpractice cases and we have had positive verdicts. Rates for their services are reasonable and comparable. McKenna Storer did an excellent job.”
I’ve worked with McKenna Storer for over 20 years…They’re a first-class firm that has been around for a long time and they have years and years of experience not just in handling cases but in taking them to court.
Here to help with whatever your legal issues may be, schedule your no-obligation consultation or Simply Call us at. (815) 334-9694
Please do not send confidential information via email. The sending of information by you, and the receipt of it by McKenna Storer, is not intended to, and does not create a lawyer-client relationship.
We dedicate ourselves to serving the needs of our clients in a highly responsive and cost-effective fashion. We are a full-service firm with broad capabilities in litigation and transaction law. We offer the capabilities clients expect from a full-service law firm: a wealth of experience in major practice areas, skilled support personnel, and state of the art technology.