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Rivera v. Google, Inc.

United States District Court for the Northern District of Illinois, Eastern Division

December 29, 2018, Decided; December 29, 2018, Filed

No. 16 C 02714


 [*1001]  Memorandum Opinion and Order

Under the Illinois Biometric Privacy Act, a private entity cannot collect or store certain kinds of biometric information, including face-geometry scans, without first obtaining consent or providing certain disclosures. 740 ILCS 14/1 et seq. Plaintiffs Lindabeth Rivera and Joseph Weiss both allege that Google unlawfully collected, stored, and exploited [**2]  their face-geometry scans via Google Photos, a cloud-based service.1 R. 63, Second Am. Compl. ¶¶ 4-5, 28-30, 33-36, 38-39, 42-45, 57-60, 67-70; see also R. 167, Pl.'s Resp. Br. at 1-3.2 Google now moves for summary judgment on all of Plaintiffs' claims against it, arguing that Plaintiffs cannot establish Article III standing; Plaintiffs are not "aggrieved" within the meaning of the Act; and Plaintiffs are not entitled to monetary or injunctive relief under the Act because they have suffered no harm.3 R. 151, Def.'s Mot. Summ. J.

For the reasons discussed below, Plaintiffs have not suffered an injury sufficient to establish Article III standing and their claims are dismissed. Because the Court lacks subject matter jurisdiction over Plaintiffs' claims, the Court need not consider Google's other arguments.

I. Background

In deciding Google's motion for summary judgment, the Court views the evidence in the light most favorable to Plaintiffs, the non-moving parties. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Google Photos is a free, cloud-based service for organizing and sharing photographs. R. 153, Def. SOF ¶ 7; R. 167-1, Pls. Resp. Def. SOF ¶ 10. When a user uploads a photo to Google Photos, Google Photos detects images [**3]  of faces, then creates a face template, represented by [TEXT REDACTED  [*1002]  BY THE COURT]. Def. SOF ¶¶ 13-15. Google uses these face templates to compare the visual similarity of faces within Google Photos users' private accounts, id. ¶ 15, and then groups photographs with visually similar faces and displays the groups (called "face groups") to the users' private account, id. ¶ 9. Google Photos' face-recognition feature automatically defaults to "on" and is applied to every photo uploaded to the service unless the user opts out. Pls. Resp. Def. SOF ¶¶ 8, 10. The technology also can be applied to photos on the user's phone if "Private Face Clustering" is enabled. Id. ¶ 10. Google Photos users can assign a label (for example a name or title) to any face groups in their private accounts. Def. SOF ¶ 18. These face labels are private to individual users' accounts and are visible only to that user and to Google.4 Id. ¶ 20. Google does not use the face templates it creates for anything other than organizing photographs in users' Google Photos accounts.5 Id. ¶ 59.

Weiss is a Google Photos user, Def. SOF ¶ 24, and the face-grouping feature in his account was defaulted to "on" until he turned [**4]  it off sometime in mid-December 2017, Pls. Resp. Def. SOF ¶ 25. There are 53 photographs of Weiss that form the basis of his claim. Def. SOF ¶ 26. At least 16 of them were taken after he filed his complaint on March 4, 2016, but before he turned off the face-grouping feature. Id. ¶ 27. Weiss's Google Photos account, which is associated with his face template, is also associated with his Gmail account. Pls. Resp. Def. SOF ¶ 53. On the other hand, Rivera is not a Google Photos user, Def. SOF ¶ 31, but her friend Blanca Gutierrez is,6 id. ¶¶ 32-33. The face-grouping feature was defaulted to "on" in Gutierrez's Google Photos account. Pls.' Resp. Def. SOF ¶ 34. There are at least 27 photos of Rivera taken by Gutierrez and uploaded to Gutierrez's Google Photos account that form the basis for Rivera's claim. Id. ¶¶ 35-36. At least 10 of the photographs of Rivera uploaded to Gutierrez's Google Photos account were taken after Rivera filed her complaint. Def. SOF ¶ 38. Gutierrez labeled a face group in her account as "LindaBeth Rivera." Id. ¶ 44. Apart from Weiss's Gmail account and Gutierrez's labelled face group, Plaintiffs' face templates are not associated with other identifying information, [**5]  such as their social security numbers or credit card information. Pls. Resp. Def. SOF ¶¶ 53-54. Google did not have permission from Plaintiffs to capture,  [*1003]  store, or use face scans of Plaintiffs.7 Pls. Statement Add. Facts ¶ 2.

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366 F. Supp. 3d 998 *; 2018 U.S. Dist. LEXIS 217710 **; 2018 WL 6830332

LINDABETH RIVERA and JOSEPH WEISS, on behalf of themselves and all others similarly situated, Plaintiffs, v. GOOGLE, INC., Defendant.

Prior History: Rivera v. Google Inc., 238 F. Supp. 3d 1088, 2017 U.S. Dist. LEXIS 27276 (N.D. Ill., Feb. 27, 2017)


Google, templates, biometric, concrete, Plaintiffs', collected, user, disclosure, privacy, photographs, faces, cases, intrusion, technology, retention, scans, identifiers, purposes, uploaded, likeness, fingerprint, injuries, common law tort, identity theft, injury-in-fact, intangible, seclusion, courts, labels, harms