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Texas sues Google over its collection of biometric data

It is impossible for Google to have obtained the consent of all Texans whose faces it has captured via its app in accord with a Texas law, the state says, since it runs facial recognition on everyone in uploaded videos or photos, even bystanders in the background.

(CN) — Google is using facial and voice-recognition software in its apps and devices in violation of a Texas law barring companies from capturing biometric data of unwitting Texans, the state claims in a lawsuit that could cost the tech giant billions of dollars in civil penalties.

Passed by the state Legislature in 2009, the Texas Capture and Use of Biometric Data Act prohibits private entities from collecting a person’s biometric identifier — “a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry” — without their informed consent, and stipulates they must destroy the information no later than one year after the date of the purpose for collecting it.

Texas Attorney General Ken Paxton hired attorneys with Norton Rose Fulbright to lead the lawsuit, filed Thursday in Midland County District Court, against the Silicon Valley-based Google, whose parent Alphabet Inc. is one of the world’s most valuable companies, raking in $76 billion in profits in 2021.

The lawsuit centers on three Google products and services: the Google Photos app, the Google Assistant service and the Nest Hub Max, a “smart-home” device equipped with speakers, a microphone, a camera and a touchscreen.

Texas claims Google uses artificial intelligence to scan the face of every person, even children, in photos and videos uploaded to Google Photos and creates a digital map of each face before converting the map into a string of data that corresponds to a prolife unique to the face.

“The ability to distill the unique physical features of a particular face down into data means that facial recognition can be used with consent for many everyday activities, such as unlocking phones and accessing password-protected accounts,” the complaint states.

According to Google, it deploys the data for the app’s “Face Grouping” feature, which automatically groups photos of similar faces to help users find photos of their family members faster.

It is impossible for Google to have obtained the consent of all the Texans whose faces it has captured, Texas says, because it indiscriminately runs facial recognition on every face detected in video or photos, even bystanders in the background.

While Google advertises its Nest Hub Max as a tool to help families stay in touch by letting them leave video messages and make video calls, and assist busy people with reminders and to-do lists, it too captures the face of any Texan who comes into view of its camera, Texas alleges in its complaint.

Next Hub Max has a facial-recognition tool called “Face Match," which allows multiple users to scan their face with the device so it can store a face template for them, and tailor content, such as reminders for upcoming events, for each of them, according to the lawsuit.

Texas claims the device’s “always-on” facial-recognition software means any time a non-user comes within view of its camera, it scans and records their face to compare with its database of faces.

“Such scanning and recording takes place irrespective of whether such a non-user is aware of — let alone consents to — the scanning and recording of the non-user’s face,” the suit states.

Furthermore, Texas claims, the Google Nest line of smart-home products, including speakers, cameras, alarm systems and thermostats, come embedded with Google Assistant, a system the company touts as a personal assistant that users activate with short commands like “Hey Google.”

Once activated, Google Assistant starts “recording and storing voiceprints for every voice it can detect,” including those of people who did not, and have no way to, consent to the recording.

Google makes more than 80% of its revenue from advertising, and Texas claims it analyzes all the data it collects to enrich the dossiers it has built up for individuals to increase its ad revenue by giving companies the means to tailor their ads to specific demographic groups.

For all these biometric identifiers it is capturing, Texas contends, Google is not abiding by the statute’s requirement to destroy them “before the first anniversary of the date the purpose for collecting the identifier expired” and that failing could prove very costly: Texas is seeking civil penalties of up to $25,000 for each violation of the Capture and Use of Biometric Data Act.

This is not the first time Paxton has targeted Google for its business practices.

Joined by the attorneys general of nine other states, he filed an antitrust lawsuit against the company in December 2020 in the Eastern District of Texas, accusing it of abusing its monopoly on the sale of digital ads.

The case was transferred to the Southern District of New York where six more states and the Commonwealth of Puerto Rico joined an amended version of the lawsuit.

U.S. District Judge Kevin Castel declined last month to dismiss the lawsuit. He found the states have “plausibly alleged that Google has monopoly power in and willfully engaged in anticompetitive conduct” in digital ad markets.

Paxton also sued Google in January in a Victoria County, Texas state court, claiming it was tracking users’ locations for advertising purposes and violating the Texas Deceptive Trade Practices Act.

Google spokesperson José Castañeda disputed the new lawsuit's allegations in an emailed statement.

"AG Paxton is once again mischaracterizing our products in another breathless lawsuit. For example, Google Photos helps you organize pictures of people, by grouping similar faces, so you can easily find old photos. Of course, this is only visible to you, you can easily turn off this feature if you choose and we do not use photos or videos in Google Photos for advertising purposes," he said.

"The same is true for Voice Match and Face Match on Nest Hub Max, which are off-by-default features that give users the option to let Google Assistant recognize their voice or face to show their information. We will set the record straight in court," he added.

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