Overview
Yesterday, Judge Koeltl dismissed a putative class action complaint against video game company Take-Two claiming that the company had improperly used facial recognition software. The complaint alleged that the MyPlayer feature in Take-Two's "NBA 2K15" and "NBA 2K16" games, which created an image of the game player's face for a custom character in the game, violated Illinois' Biometric Information Privacy Act (BIPA).
Applying the U.S. Supreme Court's recent holding in Spokeo, Inc. v. Robins, Judge Koetl found that that the plaintiffs - players whose facial scans were stored by Take-Two - could not show a sufficiently individualized and concrete injury required for Article III standing, in part because the feature worked exactly as advertised:
[T]here is no plausible allegation that there is a material risk that the plaintiffs’ biometrics may be used in a way not contemplated by the underlying use of the MyPlayer feature. The plaintiffs allege that they agreed to the MyPlayer terms and conditions, that NBA 2K15 scanned their faces to create personalized basketball avatars, and that the plaintiffs used their personalized basketball avatars for in-game play. The plaintiffs thus allege that the MyPlayer feature functioned exactly as anticipated. There is no allegation that Take-Two has disseminated or sold the plaintiffs’ biometric data to third parties, or that Take-Two has used the plaintiffs’ biometric information in any way not contemplated by the only possible use of the MyPlayer feature: the creation of personalized basketball avatars for in-game play. The purported violations of the BIPA are, at best, marginal, and the plaintiffs lack standing to pursue their claims for the alleged bare procedural violations of the BIPA.