Brantley v. Prisma Labs.

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TYRONE BRANTLEY, on behalf of himself and all others similarly situated, Plaintiff, v. PRISMA LABS, INC., Defendant.

No. 23 C 1566

United States District Court, N.D. Illinois, Eastern Division

August 6, 2024

MEMORANDUM OPINION AND ORDER

HON JORGE ALONSO, UNITED STATES DISTRICT JUDGE

Plaintiff Tyrone Brantley brings suit, individually and on behalf of all others similarly situated, against Prisma Labs, Inc., for violation of Illinois' Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. Plaintiff asserts two counts under 740 ILCS 14/15(b) (“Section 15(b)”), one count under 740 ILCS 14/15(c) (“Section 15(c)”), and one count under 740 ILCS 14/15(d) (“Section 15(d)”). Before the Court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), (2), (3), and (6) (“Motion” or “Mot.”). For the following reasons, the Court grants the Motion under Rule 12(b)(1) and, alternatively, under Rule 12(b)(2).

BACKGROUND

Defendant moves in part under Rule 12(b)(1), which challenges the Court's subject matter jurisdiction. Fed.R.Civ.P 12(b)(1). Typically, on a Rule 12(b)(1) motion, courts “read a complaint liberally and accept as true the well pleaded allegations of the complaint and the inferences that may be reasonably drawn from those allegations.” Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999) (citation and internal punctuation omitted). However in considering a factual Rule 12(b)(1) challenge, the court may look beyond the pleadings and consider competent evidence. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (“[T]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists[.]”). “Once such evidence is offered, . . . the plaintiff bears the burden of coming forward with competent proof that jurisdiction exists.” Id. (internal quotations omitted). In accordance with this authority, unless otherwise noted, the following facts are taken from the First Amended Complaint (“FAC”) and are assumed true for the purposes of this motion at this stage of the proceedings.

Prisma is the developer of the Lensa App, a popular mobile application on which users can upload photos of themselves and, for a fee, generate avatars called “Magic Avatars.” (FAC ¶ 3, ECF No. 21.) Prisma explains in its Privacy Policy^[1]that the Magic Avatar feature works by running third-party software, specifically the neutral neural network model, or AI model, of nonparty Stability AI called Stable Diffusion. In 2022, Stability AI used a dataset called LAION-5B (“LAION-5B Dataset”) to train or fine-tune Stable Diffusion. (Poyaganov Decl. ¶¶ 9-10.) Nonparty LAION, a German non-profit with no ties to Prisma, created the LAION-5B Dataset. (Id. ¶ 4.) The LAION-5B Dataset is a publicly available research database of over five billion URLs for image/text pairs “indiscriminately scraped from the internet.” (FAC ¶ 19.) Plaintiff “is informed and believes that the websites scraped include Facebook, Instagram, Snapchat, LinkedIn and millions of other social media, as well as dating, websites, news, e-commerce, blogs and websites such as, for example, those containing photos or images from Illinois high school yearbooks, Illinois high school events and athletic games, Illinois businesses, events, local news, and residents.” (Id.)

Plaintiff does not allege that he ever used the Lensa App or directly uploaded his photo to the Lensa App. Plaintiff's allegations of how Prisma used his photos is less direct. Plaintiff regularly uses various social-media platforms and dating apps such as Facebook, Instagram, Snapchat, Tinder, and BLK, and he and others have uploaded photos of Plaintiff to those platforms and apps. (FAC ¶¶ 36-42.) For example, Plaintiff has maintained a Facebook profile for approximately 15 years and currently has nearly 5,000 followers. (Id. ¶ 36.) He has maintained an Instagram account for approximately 15 years and has over 300 followers. (Id. ¶ 38.) He has maintained a Snapchat account for over seven years and has posted numerous popular photographs and videos, one of which garnered over 7,000 views. (Id. ¶ 39.) Although photos and videos shared through Snapchat typically disappear after they are viewed, they can be saved or screenshot before they disappear and shared to other places on the internet. (Id.) As for Tinder, Plaintiff was required to upload photos and a video of himself to create an account. (Id. ¶ 40.) Plaintiff also uploaded photos of himself to his profile on BLK, the “top dating and lifestyle app for the Black community in the U.S., with over 7 million downloads.” (Id. ¶ 41.)

Plaintiff alleges that the photos of him uploaded to the various social-media platforms and dating apps contained his facial geometry. (Id. ¶ 42.) Plaintiff further alleges “[o]n information and belief, given Plaintiff's prolific social media presence, the broad access that others have to his photographs and facial geometry, the scraping of millions of URLs and the billions of photographs contained in the database, Plaintiff's biometric information is contained in the LAION-5B Dataset and was accessed by Prisma to create, augment, and develop its training set for the App.” (Id.)

Stable Diffusion-the third-party software used in the Lensa App's Magic Avatar feature-is a set of code and does not actually contain photos from the LAION-5B Dataset; it is merely software that was previously taught to look for patterns in LAION-5B data. (Poyaganov Decl. ¶¶ 9-10.) Stability AI's training of Stable Diffusion took place before Prisma integrated Stable Diffusion into the Lensa App. (Id. ¶ 13.) Prisma neither encouraged nor participated in Stability AI's use of LAION-5B images. (Id. ¶ 11.) Prisma and Stability AI are separate, unaffiliated companies. (Id. ¶ 12.) Prisma claims to have never used any part of the LAION-5B Dataset for any version of the Lensa App and has no knowledge of whose photographs are contained in the dataset. (Id.)

Plaintiff alleges that he has been injured by Prisma's unlawful conduct because it has resulted in: “(a) Plaintiff's and Class Members' unique biometric information being collected, captured, obtained, purchased, disclosed, redisclosed and otherwise disseminated without the requisite notice having been given and without the requisite releases or consents having been obtained; and (b) Plaintiff and Class members being deprived of control over their biometric information.” (Id. ¶ 49.) Further, Plaintiff alleges he “do[es] not know which, or how many, individuals or entities have received, obtained, purchased, received through trade, accessed, stored, disclosed, redisclosed or otherwise made use of Plaintiff's and Class Members' biometric information, exposing them to the imminent and certainly impending injuries of identity theft, fraud, stalking, surveillance, social engineering and other invasions of privacy.” (Id. ¶ 50.) Finally, Plaintiff alleges that he and the putative class members “have also been injured and face many more imminent and impending injuries because their biometric data has been used to train technology that is prone to misuse and abuse. Namely, Prisma's Lensa app perpetuates racial bias and stereotypes, sexualizes women and children and is used to create non-consensual deep fake images. This abuse of the app's technology not only exploits innocent people, but it creates significant problems for governments and law enforcement.” (Id. ¶ 51.)

DISCUSSION

Prisma argues a variety of potential issues with Plaintiff's complaint. The Court begins with the threshold-and ultimately dispositive-issues of subject matter jurisdiction and personal jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999); Page v. Democratic Nat'l Comm., 2 F.4th 630, 639 (7th Cir. 2021) cert. denied, 142 S.Ct. 776 (2022); Hoeller v. Vill. of Barrington, 619 Fed.Appx. 534, 535 (7th Cir. 2015) (“[W]ithout personal jurisdiction, the court cannot proceed to the merits.”).

I. Rule 12(b)(1)-Subject Matter Jurisdiction

A motion under Rule 12(b)(1) challenges the Court's subject matter jurisdiction, including Article III standing. Fed.R.Civ.P. 12(b)(1); Int'l Union of Operating Eng'rs, Loc. 139, AFL-CIO v. Daley, 983 F.3d 287, 294 (7th Cir. 2020). It is well-settled that the jurisdiction of the federal courts is limited, and that no presumption of federal jurisdiction exists. Preston v. Purtrell, 410 F.2d 234, 236 (7th Cir. 1969). A complaint must affirmatively allege facts that support the existence of federal jurisdiction. Id. Prisma contends that Plaintiff lacks Article III standing to bring this suit and this Court therefore lacks subject matter jurisdiction.

“To establish standing under Article III of the Constitution, a plaintiff must demonstrate (1) that he or she suffered an injury in fact that is concrete, particularized, and actual or imminent, (2) that the injury was caused by the defendant, and (3) that the injury would likely be redressed by the requested judicial relief.” Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1244 (7th Cir. 2021) (quoting Thole v. U.S. Bank N.A, 590 U.S. 538, 540 (2020)). Prisma argues that all three requirements are lacking in this case. As “[t]he party invoking federal jurisdiction,” the Plaintiff “bears the burden of establishing the elements of standing.” Perry v. Vill. of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999). Plaintiff must establish standing “for each claim” and “form of relief sought.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (cleaned up).

At the pleading stage, standing can be challenged on either a facial or factual basis. Prisma raises both...