Vance v. Google LLC

Background

Plaintiffs Steven Vance and Tim Janecyk alleged that they and other Illinois residents publicly posted photographs containing their faces on Flickr. According to the amended complaint, Flickr later made a large dataset of photographs and related information publicly available. IBM allegedly used about one million of those images to create its Diversity in Faces Dataset, scanned the images’ facial geometry, extracted biometric information, and made the dataset available to for-profit companies.

The plaintiffs alleged that Google obtained the dataset from IBM and used it to improve facial-recognition products, including the face-unlock feature on Pixel smartphones. They brought two claims under the Illinois Biometric Information Privacy Act (BIPA): one alleging that Google collected their biometric information without written notice and written consent under Section 15(b), and another alleging that Google profited from their biometric information under Section 15(c). They also brought an Illinois unjust-enrichment claim.

Rule 12(b)(6) standard

Google moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint contains enough factual allegations to state a legally sufficient claim. At this stage, the court accepts well-pleaded facts as true and considers whether they make liability reasonably plausible.

BIPA claims

The court rejected Google’s argument that both BIPA claims should be dismissed because the alleged violations did not occur primarily and substantially in Illinois. The plaintiffs alleged that they were Illinois residents, that the dataset included their photographs, and that Google had Chicago offices with employees working on Pixel smartphones. The court held that these allegations supported a reasonable inference that the alleged violations occurred primarily and substantially in Illinois. It therefore denied Google’s motion to dismiss the Section 15(b) and Section 15(c) claims on that ground.

The court separately interpreted Section 15(c)’s prohibition on an entity “selling, leasing, trading, or otherwise profiting from” biometric information. It adopted the interpretation that “otherwise profit” covers commercial transactions in which access to biometric data is shared or given to another party in return for something of value. The court rejected the plaintiffs’ broader theory that Section 15(c) prohibits using biometric information to improve commercial products and make them more profitable.

Applying that interpretation, the court held that the amended complaint did not adequately allege a Section 15(c) violation. The allegations that Google used the dataset to improve the fairness, accuracy, and commercial value of its products did not plausibly show that Google disseminated or shared access to the biometric data through its products, or otherwise profited from the data in a way prohibited by Section 15(c). The court granted Google’s motion to dismiss the Section 15(c) claim without leave to amend.

Unjust enrichment

The court held that the plaintiffs adequately pleaded unjust enrichment. They alleged that Google obtained the dataset to improve its facial-recognition products and profited from those improvements, while the plaintiffs suffered privacy-related injuries and the loss of statutory privacy rights.

The court nevertheless dismissed the unjust-enrichment claim to the extent it sought restitution or disgorgement. Those forms of relief are equitable, and the plaintiffs had not alleged specific facts showing that legal remedies available under BIPA were inadequate. The court granted Google’s motion on those requests without leave to amend.

The court reached a different result regarding injunctive relief based on alleged future harm. The plaintiffs alleged that Google should not be permitted to retain the biometric information it allegedly obtained unlawfully. The court held that they had sufficiently pleaded a likelihood of future harm for which they lacked an adequate legal remedy. It therefore denied Google’s motion to dismiss the unjust-enrichment claim to the extent it sought an injunction.

Disposition

The court granted in part and denied in part Google’s motion to dismiss. Specifically:

- The motion to dismiss the Section 15(b) BIPA claim was denied. - The motion to dismiss the Section 15(c) BIPA claim was granted without leave to amend. - The motion to dismiss the unjust-enrichment claim was denied to the extent it sought injunctive relief and granted without leave to amend to the extent it sought restitution and disgorgement.

The order was a pleading-stage ruling; it did not determine whether Google ultimately violated BIPA or was liable for unjust enrichment.