SAN JOSE, Calif. (CN) — Illinois residents who say Google used their facial recognition data without consent for its own gain will have the chance to improve their San Jose class action, following a series of losses in similar suits.
Google faces claims from residents of the Prairie State who say Google wrongfully used their photos, which the website Flickr made available to third parties, to improve the accuracy and reliability of its facial recognition technology.
IBM extracted facial landmarks from 100 million photos to create the Diversity in Faces Dataset, which it gave to third parties like Google for research purposes, according to the plaintiffs, who say Google violated the Illinois Biometric Information Privacy Act and should not have downloaded the files without their written consent.
U.S. District Judge Beth Labson Freeman made her thoughts known during oral arguments on Thursday in San Jose. “Frankly, it’s unlikely this case has legs based on the history of all the other similar cases, but I’d like to hear arguments on it,” she said.
The Obama-appointed judge said she wouldn't address the unjust enrichment claim until she has more precedent on it and was likely to dismiss it, with leave to amend.
She also found the plaintiffs’ extraterritoriality claim concerning. “It raises the concern that when one keeps doing the same thing and hopes to get a different result. That is not realistic,” the judge said.
Google lawyer Anna Thompson told Judge Freeman on Thursday that plaintiffs have no claims against Google because company did not receive the from the plaintiffs directly.
“The question is whether Google sold, or otherwise profited,” Thompson said.
The tech giant argued in its October 2023 motion to dismiss that the unlawful profit claim should fail because the plaintiffs don't claim Google exchanged their “biometric identifiers” for a financial benefit. Google also says the plaintiffs haven't identified any relevant conduct by the company in Illinois and can't seek to apply the Illinois Biometric Information Privacy Act outside the state limits.
On behalf of the plaintiffs, attorney Jamisen Etzel said his clients were being held to a summary judgment standard to prove their claim for extraterritoriality without having access to information Google says they must allege. He said the plaintiffs needed discovery to back up their claim.
“We don’t know where they downloaded the data set, we don’t know which employees were working on it and we don’t know where they stored it,” Etzel said.
If the judge were to agree the plaintiffs had met the pleading standard on this claim, she asked if it would make sense to allow limited discovery on the issue of extraterritoriality, with a very short motion for summary judgment to follow soon.
“So we don’t get into this whole expensive case that, frankly, your firm has hit a wall on in every other court you’ve been in,” the judge said.
Etzel was agreeable and said that approach “gives us the fair opportunity for what I’m saying.”
As to the claim for profit, he said the plaintiffs disagreed with the definitions other judges have used to limit how a company can be found to have profited from using personal information like theirs.
The judge said all she can do is determine if the circumstances in this case fit the definition of profiting. But she said the plaintiffs have sufficiently claimed that Google uses the data set in question, even if she does not yet know how it is used, or if the use is for Google’s profit.
Freeman indicated that she is likely to release a discovery timeline plan soon, as well as an order serving as a targeted summary judgment on the extraterritoriality issue.
Thompson pushed back, saying “the doors of discovery do not open” until the plaintiffs have sufficiently made a claim, and that the plaintiffs' suggestions would have serious ramifications to research efforts nationwide.
The judge said Thompson had persuaded her that the plaintiffs needed to further flesh out the extraterritoriality claim to properly open the case to discovery, although "there’s only so much the plaintiff can know before they have the right to take discovery.”
“It is very frustrating to be fourth in line on a series of dead end cases,” Freeman said, referring to how many other judges have considered similar litigation. “Or maybe it should be frustrating to the plaintiffs, I don’t know.”
She added, “I think I’ll be denying the motion on the issue of profit, with the understanding that I just need to know more, which I will have after you have discovery.”
The parties are not yet scheduled to return to court as of Thursday.
IBM said in 2020 that it would quit building and selling facial recognition software following widespread concerns that the technology was being used for racial profiling and mass surveillance.
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