Vance v. Microsoft Corp.

Vance v. Microsoft Corp.

Opinion

 [*1304]  ORDER GRANTING IN PART AND DENYING IN PART REMAINDER OF MICROSOFT'S MOTION TO DISMISS

I. INTRODUCTION

Before the court are two remaining portions of Defendant Microsoft Corporation's ("Microsoft") motion to dismiss. (See MTD (Dkt. #25).) Plaintiffs Steven Vance and Tim Janecyk (collectively, "Plaintiffs") oppose Microsoft's motion. (Resp. (Dkt. # 37).) At the direction of the court, both parties filed supplemental briefs to address (1) the interpretation [**2]  of "otherwise profit from" in § 15(c) of Illinois's Biometric Information Privacy Act, 740 ILCS 14/1, et seq. ("BIPA"); and (2) whether Washington or Illinois law should govern Plaintiffs' unjust enrichment claim. (Pls. Supp. Br. (Dkt. # 45); Def. Supp. Br. (Dkt. # 44); 3/15/21 Order (Dkt. # 43) at 24.) The court has considered the motion, the supplemental briefing, the relevant portions of the record, and the applicable law. The court additionally held oral arguments on April 13, 2021. (See 4/13/21 Min. Entry (Dkt. # 46).) Being fully advised, the court GRANTS in part and DENIES in part the motion to dismiss.

II. BACKGROUND

The court discussed the factual and procedural backgrounds of this case in its previous order on the other portions of Microsoft's motion to dismiss. (See 3/15/21 Order at 2-5.) Thus, it only summarizes here the facts most relevant to the remaining portions of the motion.¹

Plaintiffs are Illinois residents who uploaded photos of themselves to the photo-sharing website Flickr. (Compl. (Dkt. # 1) ¶¶ 6-7, 28, 60-61, 69.) Both were in Illinois when uploading the photos. (Id. ¶¶ 60, 69.) Unbeknownst to them, Flickr, through its parent company Yahoo!, compiled their photos along with hundreds of [**3]  millions of other photographs posted on the platform into a dataset ("Flickr dataset") that it made publicly available for those developing facial recognition technology. (Id. ¶¶ 29-32.) International Business Machines Corporation ("IBM") created facial scans from the photographs in the Flickr dataset to create a new dataset called Diversity in Faces, which contained facial scans of Plaintiffs and other Illinois residents. (Id. ¶¶ 40-41.) Microsoft obtained the Diversity in Faces dataset, including Plaintiffs' facial scans, from IBM. (Id. ¶¶ 55-56.) No company in this chain of events—Flickr, Yahoo!, IBM, or Microsoft—informed or obtained permission from Plaintiffs for the use of their photographs or facial scans. (Id. ¶¶ 30, 45, 65-66, 73-74.)

Microsoft used the Diversity in Faces dataset to improve "the fairness and accuracy of its facial recognition products," which "improve[d] the effectiveness of its facial recognition technology on a diverse array of faces" and in turn made those products "more valuable in the commercial marketplace." (Id. ¶¶ 57-58.) Microsoft's facial recognition products include its Cognitive  [*1305]  Service Face Application Program Interface and its Face Artificial [**4]  Intelligence service that "allowed customers to embed facial recognition into their apps without having to have any machine learning expertise." (Id. ¶ 53.) Microsoft additionally conducts "extensive business within Illinois" related to facial recognition, including selling its facial recognition products through an Illinois-based vendor; working with an Illinois-based business to build new applications for facial recognition technology; and working with Illinois entities to build a "'digital transformation institute' that accelerates the use of artificial intelligence throughout society." (Id. ¶ 59.)

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