Illinois residents win go-ahead for privacy claims against Google

SAN JOSE, Calif. (CN) — As with most things, third time’s the charm.

A privacy class action against Google will trudge onward after fighting its way through its third motion to dismiss, U.S. District Judge Beth Labson Freeman ruled in a 15-page order Thursday.

The judge determined that claims that the tech giant violated Illinois privacy law will be allowed to proceed to trial, but specifically whittled down extra claims that the company “otherwise profited off” Illinois residents’ biometric information.

“The court finds plaintiffs have pled sufficient facts from which a reasonable inference could be drawn that the alleged BIPA violations occurred ‘primarily and substantially’ in Illinois,” the Obama appointee wrote.

Illinois residents claim in their 2020 lawsuit that Google used their facial recognition data without their consent, violating the state’s Biometric Information Privacy Act. Residents of the Prairie State 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.

The Biometric Information Privacy Act forbids private entities from collecting, capturing, purchasing, trading or obtaining a person’s biometric information without first providing written notice and obtaining a written release. It also prevents them from selling, leasing or “otherwise profiting” from it.

Google moved to dismiss the claims it violated this law in May, questioning if the Illinois plaintiffs could even sue the California-based company for these claims.

Freeman wrote that she didn’t believe the privacy law contained any specific provisions suggesting it applied outside of Illinois. Therefore, any violations must have occured in Illinois for plaintiffs to obtain any relief.

Despite previous dismissals, the judge found the plaintiffs met the bar to continue on claims that Google improperly collected users’ facial data. Although she conceded that discovery could reveal these supposed violations didn’t happen in Illinois primarily, she found the plaintiffs had done enough to survive this stage of the process.

But the decision wasn’t all victories for the plaintiffs. Freeman also dismissed residents’ claim that Google violated Illinois privacy law specifically by profiting off this information.

“Indeed, plaintiffs have failed to allege how Defendant used the DiF Dataset if at all in the Pixel smartphone,” she said.

On top of addressing if plaintiffs sufficiently pleaded their claims that Google violated Illinois privacy laws, the judge also rules on if the Alphabet company benefitted from using the facial data without compensating its originators.

The judge shot down part of the plaintiffs’ unjust enrichment claims, saying they already had an adequate legal remedy to their claims for restitution and disgorgement through the Biometric Information Privacy Act. The law already allows wronged parties to recover $1,000 for “negligent” violations and $5,000 for “intentional” or “reckless” violations.

“The Ninth Circuit has held that plaintiffs seeking equitable relief in a federal court must establish that they lack an adequate remedy at law,” she ruled.

She did, however, allow the elements of the unjust enrichment claim to survive, as long as they related to seeking an injunction to prevent any future harm to the residents.

Win or lose, this will likely be the case’s last time through the courts. Given Freeman’s dismissals without leave to amend in her order and her comments at a previous motion to dismiss hearing, another dismissal with leave to amend is unlikely.

“The goal is that the claim is either in or out this time. That’s the goal,” the judge said at that hearing in October. She added that it was frustrating to see several iterations of the same lawsuit all go to the same graveyard.

But the lawsuit has so far proven tenacious, having survived two other motions to dismiss.

The first of these motions was terminated in February 2021 for procedural reasons: Google filed a motion to dismiss and a motion to stay but did not indicate in which order it preferred the court consider the motions.

In March 2024, Freeman examined a second motion and dismissed the claim but gave plaintiffs the chance to improve their lawsuit.

The plaintiffs seek monetary damages on behalf of other similarly situated residents, as well as an injunction that prevents Google from using the facial data, bars them from continuing to collect the plaintiff’s facial data and requires them to delete it.