Vance v. Google LLC

Background

Plaintiffs Steven Vance and Tim Janecyk alleged that they uploaded photographs containing their faces to Flickr. Flickr allegedly made a large dataset of photographs publicly available. International Business Machines Corporation then allegedly used some of those photographs to create the Diversity in Faces Dataset, which contained biometric identifiers derived from facial geometry. Plaintiffs alleged that Google obtained that dataset without providing written notice or obtaining written releases, and used it to improve facial-recognition products and technologies.

The complaint asserted two claims under the Illinois Biometric Information Privacy Act (BIPA), one for obtaining biometric information without the required notice and written consent and one for profiting from biometric information. Plaintiffs also asserted unjust enrichment and sought injunctive relief.

Legal Standard

The court considered Google's motion under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. At this stage, the court accepts well-pleaded factual allegations as true but does not accept conclusory allegations or unreasonable inferences. A claim must contain enough factual matter to be plausible.

The court also granted Google's unopposed request for judicial notice of business-entity searches from state government websites concerning Flickr and IBM.

BIPA Claims

The court held that BIPA does not expressly apply outside Illinois, so the alleged violations had to occur in Illinois. The relevant question was whether the circumstances occurred primarily and substantially in Illinois.

Plaintiffs alleged that they uploaded their photographs in Illinois, but they did not allege that Google processed, stored, or otherwise used the dataset in Illinois. They also did not allege that Google directly interacted with them or another person or entity in Illinois to obtain the dataset. The court concluded that the allegations about Google's failure to provide notice, the injuries within Illinois, and plaintiffs' Illinois residency did not establish the required connection between Google's conduct and Illinois.

The court therefore granted Google's motion to dismiss the first and second BIPA claims with leave to amend. Because the court found the BIPA claims deficient on the Illinois-connection issue, it did not decide Google's separate argument that the section 15(c) claim failed to adequately allege that Google profited from the biometric information. The court noted that the section 15(c) allegations might also be deficient because they said little about how Google used the dataset.

Unjust Enrichment

The court held that plaintiffs had to identify which state's law governed their unjust-enrichment claim because state laws differ. Plaintiffs acknowledged that California and Illinois law were not identical and indicated that they could replead the claim under Illinois law. The court granted Google's motion to dismiss the unjust-enrichment claim with leave to amend.

Injunctive Relief

The parties agreed that injunctive relief was improperly pleaded as a separate cause of action. The court granted Google's motion to dismiss the injunctive-relief claim without leave to amend.

Order

The court ordered that any amended complaint be filed within 30 days after entry of the order, consistent with the order. Plaintiffs could not add claims or parties without the court's permission and had to file a redlined version of any amended complaint.