Judge rules in favor of video game maker using biometrics
NBA 2K15 uses face biometrics for player avatars, company sued under Illinois Biometric Information Privacy Act
01 February, 2017
category: Biometrics, Corporate
An important court decision impacting the biometric industry was reached as an Illinois judge found that a video game publisher would not be penalized for storing player face likenesses for in-game display.
It’s an big win for the use of biometrics as the uncertainty caused by a 2008 Illinois state law has had many concerned about launching consumer-facing implementations.
Late last year, SecureIDNews reported that another Illinois judge found that a tanning studio had violated the state’s Biometric Information Privacy Act and was ordered to pay $1.25 million.
Across Illinois other cases are pending citing violation of the law. Basically it says that private entities are prohibited from using a person’s biometrics without explaining the reason for use, duration of storage, and receiving written consent.
While this sounds good on the surface, the details of both explanation and consent are often subjective.
Like many of the other filed cases, the manufacturer of NBA 2K16, Take-Two Interactive, did notify and require consent, but plaintiffs’ lawyers argued they were not explicit enough. The two game players that filed the suit claimed they were not told that their likenesses would be displayed for other gamers to see or that they would be stored indefinitely.
The attorneys for Take-Two argued that the company did require the players to provide online consent and made the case that by setting up the facially accurate avatar and playing online, they should have understood the process.
Unlike the judge in the L.A Tan case that awarded for the plaintiff, this judge found that the plaintiffs could show no harm done. In other words, the plaintiff needed to show a concrete injury caused by the collection of the biometric information in order to win the case.
Without this direction to dismiss, the use of biometrics by national companies is likely to be slowed, as they do not want to roll out one solution for the world and another non-biometric solution for Illinois.
This is at odds with the tanning studio case as those plaintiffs also lacked concrete injury, yet won the day.
The Take-Two verdict will likely be seen as good news for the use of biometrics as it could provide a basis for other judges to dismiss Illinois Biometric Information Privacy Act cases when they are based solely on a company’s processes rather than actual plaintiff injuries.
According to the New York Law Journal, “the plaintiffs bar recently has been stepping up suits under the act. In 2016, a judge in the Northern District of California refused to dismiss a class action against Facebook; Six Flags is defending a lawsuit over its use of fingerprints, or finger scans, for season pass members in state court in Illinois; and Shutterfly is a defendant in an action in the Northern District of Illinois.”
Without this direction to dismiss, the use of biometrics by national companies is likely to be slowed, as they do not want to roll out one solution for the world and another non-biometric solution for Illinois.
Check out the face avatar creation process in the following video: