Shutterfly Violated Illinois Biometric Law by Collecting, Storing Face Scans from Uploaded Photos, Class Action Says [UPDATE]
Last Updated on September 17, 2021
Miracle-Pond-et-al-v-Shutterfly, Inc.
Filed: June 11, 2019 ◆§ 2019CH07050
According to a class action, Shutterfly overstepped Illinois biometric privacy law by capturing and storing face scans of individuals in every photo uploaded to its service.
Case Updates
September 17, 2021 – $6.75M Settlement Granted Final Approval
The judge overseeing the case detailed on this page has granted final approval of a settlement that the plaintiffs claim will provide “substantial financial benefit” and non-monetary relief to those covered by the deal.
The settlement, which covers Illinois residents who appeared in a photograph on Shutterfly between June 11, 2014 and September 9, 2021, will provide an estimated $80 to each claimant, though the plaintiffs noted in an August 25 memo that the amount may end up being less depending on how many more people filed claims between when the memo was filed and the September 14 claims deadline.
Claims will be paid on a pro-rated basis out of the $6,750,000 settlement fund, from which attorneys’ fees and other expenses will also be paid, court documents state.
The plaintiffs’ memo also notes that the deal will provide “significant non-monetary” relief in the form of changes to Shutterfly’s biometric data collection policies and practices. Under the terms of the settlement, Shutterfly will use its “face grouping” feature in a way that complies with the Illinois BIPA and provide proper disclosure of its data collection practices to Illinois residents along with a way to opt out of having their biometric data collected.
After finding that the settlement was “fair, reasonable, and adequate,” the judge overseeing the case granted the plaintiffs’ motion for final approval on September 9, 2021.
February 24, 2021 – Settlement on the Way
The parties to the proposed class action detailed on this page have reached a settlement in principal, according to a recent court filing.
A February 18 joint status report states that the deal, if approved, will resolve all claims asserted in the lawsuit, which looks to cover a class of Illinois residents whose biometric identifiers, including facial geometry scans, were collected, captured or otherwise obtained by Shutterfly through photos uploaded to its website. Details regarding the specifics of the settlement are not yet available.
The proposed deal is expected to be presented to the Cook County Circuit Court’s Chancery Division for approval.
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Shutterfly faces a proposed class action in which two consumers allege the company has been illegally collecting face scans of Chicago-area residents without adhering to Illinois Biometric Privacy Act (BIPA) regulations and regardless of whether an individual holds a Shutterfly account.
“Unbeknownst to the average consumers, and in direct violation of [the BIPA], Shutterfly’s proprietary facial recognition technology locates each and every face appearing in each and every photo uploaded to its service from within the state of Illinois,” the suit reads, “and then, based on the unique points and contours of each face, extracts scans of face geometry (i.e., biometric identifiers) from each person appearing in each photo, including non-users—all without ever informing anyone of this practice."
Chicago has been cast as a guinea pig on which tech companies have been testing new applications for biometric-facilitated financial transactions, the lawsuit says. Shutterfly, according to the case, is one of those large corporations, and has allegedly taken to actively “collecting, storing, and using” biometric facial information “without providing notice, obtaining informed written consent or publishing data retention policies,” all things mandated by the BIPA. The company allegedly gathers this biometric information from “every individual who appears in a photograph uploaded” to the defendant’s website.
“Shutterfly collects these scans of face geometry using sophisticated facial recognition technology that extracts and analyzes data from the points and contours of faces appearing in photos uploaded by its users,” the suit claims. “Each scan of face geometry is unique to a particular individual, in the same way that a fingerprint or voiceprint uniquely identifies one and only one person.”
As the suit tells it, Shutterfly “made no effort to obtain consent from anyone when it introduced its facial recognition technology.” The lawsuit argues that Shutterfly's handling of biometric facial data not only violates the BIPA, but flies in the face of Federal Trade Commission guidelines that outline what the agency feels are best practices with regard to companies using facial recognition technology.
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