Shutterfly Can’t Dodge Illinois Class Action Over Face Scans

CHICAGO (CN) – A federal judge refused to dismiss class-action claims that online photo service Shutterfly gathers and stores facial-geometry scans of people who have never uploaded digital images onto its website.

Shutterfly allows users to easily upload and share digital photographs. Lead plaintiff Alejandro Monroy sued the photo-sharing site in Chicago federal court last year, claiming its use of facial-geometry software violates the Illinois Biometric Information Privacy Act.

The state law regulates the gathering, use and storage of biometric identifiers of companies, groups and individuals.

Examples of biometric identifiers include fingerprints, voiceprints, iris or retina scans, facial patterns and other unique human characteristics.

“When a user uploads a photo, Shutterfly’s facial recognition software scans the image, locates each of the faces in the image, and extracts a highly detailed ‘map’ or ‘template’ for each face based on its unique points and contours,” according to a ruling issued Friday by U.S. District Judge Joan Gottschall.

Monroy’s class-action lawsuit claims a person can be uniquely identified by their face geometry, just like they can be identified by fingerprints.

Shutterfly allegedly stores the facial-geometry maps in a massive database and compares them to every photograph uploaded onto the website.

Monroy – who represents a class of people who are not Shutterfly users but whose face scans were allegedly collected by the website via photos uploaded in Illinois – says that once a person’s face template matches an image in Shutterfly’s database, users are prompted to “tag” the photo with the individual’s name.

He claims a Shutterfly user living in Chicago uploaded a photo of him onto the website in 2014 and tagged his name in the photo.

Shutterfly argued in court that biometric data, by definition, is the in-person collection of data, such as fingerprint scans at stores and schools, and not information gathered from digital images.

But Judge Gottschall disagreed in her 19-page opinion and denied the photo service’s motion to dismiss the case.

“Shutterfly’s argument assumes that the other biometric identifiers listed in the [state law’s] definition can be obtained only via in-person processes. That is incorrect. For example, it appears fingerprints and retinal scans can be obtained from images and photographs,” she wrote.

Gottschall also shot down Shutterfly’s argument that Monroy failed to show he suffered damages over its alleged invasion of his privacy.

“Monroy specifically alleges that ‘by collecting, storing, and using plaintiff’s and the class’s biometric identifiers and biometric information as described herein, Shutterfly violated the right of plaintiff and each class member to privacy in their biometric identifiers and biometric information,’” she concluded.

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