Sosa v. Onfido, Inc.

Sosa v. Onfido, Inc.

Opinion

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Defendant Onfido, Inc. ("Onfido") moves to dismiss Plaintiff Fredy Sosa's Complaint under Federal Rule of Civil Procedure 12(b)(6). (See Defendant's Rule 12(b)(6) Motion to Dismiss ("Mot.") (Dkt. No. 45); Defendant's Memorandum of Law in Support of Its Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim ("Mem.") (Dkt. No. 46).)¹ For the following reasons, we deny Onfido's motion.

FACTUAL BACKGROUND

We take the following facts from the Complaint, "documents attached to the [Complaint], documents that are critical to the [Complaint] and referred to in it, [] information that is subject to proper judicial notice[,]" and any additional facts set forth in Sosa's response, "so long as those facts are consistent with the pleadings." Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1019-20 (7th Cir. 2013) (quotation marks omitted). We have accepted as true all well-pleaded factual [*2]  allegations and drawn all reasonable inferences in Sosa's favor. O'Brien v. Vill. of Lincolnshire, 955 F.3d 616, 621 (7th Cir. 2020).

Onfido, a Delaware corporation with its principal place of business in England,² markets and sells proprietary facial recognition software that is used by online businesses to verify consumers' identities. (Class Action Complaint and Demand for Jury Trial ("Compl.") (Dkt. No. 1-1) ¶¶ 1, 2, 9.) To verify a consumer's identity using Onfido's software, the consumer first uploads a copy of his or her identification and a photograph of his or her face. (Id. ¶ 22.) Onfido's software then scans the identification and photograph to locate the facial images on each document; extracts a unique numerical representation of the shape or geometry of each facial image, which is often called a "faceprint"; compares the faceprints from the consumer's identification and photograph; and generates a score based on the similarity of the faceprints. (See id. ¶¶ 2, 23, 24, 41; Plaintiff's Response to Defendant's Motion to Dismiss ("Resp.") (Dkt. No. 49) at 3.) Onfido's software also can compare the faceprints obtained from a consumer's identification or photograph with other biometric data in Onfido's database, such as the biometric data of [*3]  known masks or other consumers' photographs. (Compl. ¶¶ 2, 25, 27.) Online businesses can integrate Onfido's software into their products and mobile apps in such a way that consumers seeking to verify their identities likely do not know that they are interacting with and providing their sensitive information to Onfido, a third party. (Id. ¶¶ 3, 4, 21.)

Sosa, an Illinois citizen, is a member of OfferUp, an online marketplace that partnered with Onfido to verify its users' identities using Onfido's software. (Id. ¶¶ 8, 33, 34); Sosa v. Onfido, 8 F.4th 631, 634-35 (7th Cir. 2021). In April 2020, Sosa verified his identity with OfferUp by using OfferUp's mobile application to "upload[] a photograph of his driver's license and a photograph of his face." (Compl. ¶ 35); Sosa, 8 F.4th at 635. Onfido used its software to scan Sosa's face, extract Sosa's faceprints, and compare the two photographs. (Compl. ¶ 35; Resp. at 3.) "Onfido then kept Sosa's unique faceprint in a database and accessed it every time another person used Onfido's verification process." (Resp. at 3.)

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