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LDG Garners First-Of-Its-Kind Win In Facial Recognition Technology Suit

LDG closed out 2015 with a major victory for the privacy rights of consumers after an Illinois federal judge declined to dismiss the firm’s class action accusing Shutterfly Inc. (and its subsidiary ThisLife LLC) of unlawfully using facial recognition technology to gather “biometric data” from users’ photos.

The plaintiff, Brian Norberg, brought the suit against Shutterfly after a Shutterfly user uploaded a photo of him and, when the user later uploaded more photos of him, was asked if those pictures should be tagged with Norberg's name. Shutterfly was able to recognize the distinct features of Norberg’s face and suggest the tag using facial recognition technology that improperly scans his distinct identifying features and stores that information for later use, in violation of the Illinois Biometric Information Privacy Act.

In the ruling, Judge Charles Norgle of the Northern District of Illinois found that because Norberg alleged that the defendants “are using his personal face pattern to analyze and identify [him] in photographs posted to websites” and “he was not presented with a written biometrics policy nor has he consented to have his biometric identifiers used by defendants,” Norberg plausibly stated a claim for relief under the BIPA. Judge Norgle also found that the Court had personal jurisdiction over both Shutterfly and ThisLife.