Target’s Virtual Try-On Feature Violates Ill. Biometric Privacy Law, Class Action Alleges
by Erin Shaak
Potter v. Target Corporation
Filed: September 10, 2021 ◆§ 2021CH04615
A lawsuit claims Target has collected consumers’ facial geometries through its “Virtual Try-On” feature without satisfying the requirements of an Illinois law.
A proposed class action claims Target Corporation has unlawfully collected consumers’ facial geometries through its “Virtual Try-On” feature without satisfying the requirements of an Illinois biometric privacy law.
Per the case out of Cook County Circuit Court, the Illinois Biometric Information Privacy Act (BIPA) imposes strict disclosure and consent requirements on private entities who collect, store, use or disclose residents’ biometric information, such as retina and iris scans, fingerprints, and scans of hand and face geometry.
The lawsuit alleges consumers were not properly informed of Target’s biometric data collection practices and never provided written consent for such before the retailer collected scans of their faces through the virtual try-on feature on its website and mobile app, which allows users to view what certain products, such as makeup, would look like on their faces before they purchase the items.
According to the case, Target’s try-on feature works by asking a customer to upload a photo of their face or begin a live video feed from their camera. The try-on technology then scans the face that appears in the photo or camera feed and builds a “unique digital map” of the individual’s facial geometry, including the location of their eyes, lips, eyebrows and other facial features, the lawsuit relays. Per the suit, Target uses augmented reality to virtually apply makeup or other products to the face in the image, allowing the individual to view how they would look wearing a particular product before they buy it. The customer is then permitted to “save” or upload the image with the makeup applied, the case says.
Per the lawsuit, the face template generated by the Target try-on technology constitutes a biometric identifier as defined by the Illinois BIPA. The lawsuit alleges Target and its third-party affiliates collect data on how often customers use the virtual try-on technology and save the personal data from customers’ facial scans “for research and marketing purposes.”
According to the suit, however, Target has overstepped the BIPA by collecting customers’ biometric information without first informing them in writing of the purpose and length of time for which their data would be collected and obtaining their informed written consent to collect and use scans of their facial geometry.
The case looks to cover Illinois residents who used Target’s virtual try-on technology in Illinois at any time since September 10, 2016.
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