H.K. v. Google LLC

595 F.Supp.3d 702

H.K. and J.C., THROUGH their father and legal guardian Clinton FARWELL, and M.W., through her mother and legal guardian Elizabeth Whitehead, individually and on behalf of all others similarly situated, Plaintiffs,

v.GOOGLE LLC,¹ Defendant.

Case No. 1:21-cv-01122-SLD-JEH

United States District Court, C.D. Illinois, Rock Island Division.

Signed March 31, 2022

Andrew John Stuckart, Lucie Bougher & Associates, Macomb, IL, David W. Hall, Frank S. Hedin, Hedin Hall LLP, Miami, FL, Joseph I. Marchese, Joshua D. Arisohn, Philip L. Fraietta, Scott A. Bursor, Bursor & Fisher PA, New York, NY, for Plaintiffs.

Bobbie J. Wilson, Samuel Wilson, Sunita Bali, Perkins Coie LLP, San Francisco, CA, Nicola C. Menaldo, Perkins Coie LLP, Seattle, WA, Kathleen A. Stetsko, Perkins Coie LLP, Chicago, IL, for Defendant.

ORDER

SARA DARROW, CHIEF UNITED STATES DISTRICT JUDGE

Before the Court are Defendant Google LLC's motion to dismiss, ECF No. 16, and motion for leave to file a reply, ECF No. 19. For the following reasons, the motion to dismiss is GRANTED IN PART and DENIED IN PART, and the motion for leave to file a reply is GRANTED.

BACKGROUND²

Plaintiffs H.K. and J.C., through their father and legal guardian Clinton Farwell, and Plaintiff M.W., through her mother and legal guardian Elizabeth Whitehead, bring this putative class action against Defendant, a technology company headquartered in California. Plaintiffs allege that Defendant has "systematically violated" the Illinois Biometric Information Privacy Act ("BIPA"), 740 ILCS 14/1–99, "by collecting, storing, and using the biometric data of millions of school children throughout the country ... without seeking, much less obtaining the requisite informed written consent from any of their parents or other legal guardians." First. Am. Class Action Compl. ¶ 4, ECF No. 14. "Specifically, Google provides its ‘ChromeBook’³ laptops to grade schools, elementary schools, and high schools nationwide, who in turn make these computing devices available for use by children who attend their schools." Id. ¶ 26. The laptops are pre-installed with Defendant's " ‘G Suite for Education’⁴ platform, a cloud-based service used by young students all across the country, including the state of Illinois." Id. To drive adoption of ChromeBooks and alleviate privacy concerns, Defendant assured students, parents, and educators it would only collect education-related data from students using "G Suite for Education." Defendant also promised not to mine student data for its own commercial purposes. Such representations were significant because Defendant maintains services, such as Google Photos, utilizing facial recognition technology, "s[ells] licenses to its Google Photos APIs, including APIs that enable the use of its facial recognition technology, to various mobile application developers, and derives substantial commercial profit from such sales."⁵ Id. ¶ 24.

Plaintiffs allege that, contrary to Defendant's privacy-related promises, features on "G Suite for Education" instruct schoolchildren to speak into their ChromeBook's recording device and look into its camera. Defendant subsequently records the "acoustic details and characteristics of their voices" and "scans and images the geometry of their faces," then "extracts, collects, stores, and catalogs" the students’ voiceprints and face templates, which are unique biometric identifiers. Id. ¶¶ 30, 31. Defendant's technology then "compares the generated voiceprint or face template against the voiceprints and face templates already stored in its database" to improve the functionality of the platform, improve the quality of the collected voiceprints and face templates, "identify children by name[,] ... [and] recognize childrens’ [sic] gender, age, and location." Id. ¶¶ 32, 33.

Plaintiffs, who are elementary and middle school students in McDonough County, Illinois and Kane County, Illinois, were provided ChromeBooks pre-installed with "G Suite for Education" by officials at their schools. Plaintiffs used accounts linked to their names and other personal details that Defendant had established for them. When Plaintiffs used features of the platform that required them to speak into their laptops’ audio recording devices and look into their cameras, Defendant recorded their voices, imaged their faces, and collected their biometric data for its database.

That Defendant collected Plaintiffs’ biometric data was "unbeknownst to Plaintiffs H.K., J.C. or their father, Clinton Farwell, and unbeknownst to Plaintiff M.W. or her mother, Elizabeth Whitehead." Id. ¶ 41. Neither Farwell nor Whitehead, whom Plaintiffs indicate are their legal guardians and "authorized representative[s]," received a disclosure from Defendant that it would collect, capture, otherwise obtain, or store Plaintiffs’ biometric data. Id. ¶ 44. Nor did Farwell or Whitehead "consent[ ], agree[ ], or g[i]ve permission—via a written release or otherwise—to authorize" Defendant's data collection. Id. Accordingly, Plaintiffs contend Defendant has collected students’ biometric data without notice or consent in violation of 740 ILCS 14/15(b) ("§ 15(b)") and without a written, publicly available retention and destruction schedule in violation of 740 ILCS 14/15(a) ("§ 15(a)").

Plaintiffs first filed this putative class action in Illinois state court, which Defendant removed to this Court on April 20, 2021. See Not. Removal 1, ECF No. 1. Defendant moved to dismiss Plaintiffs’ complaint, ECF No. 11, after which Plaintiffs filed the First Amended Class Action Complaint, mooting Defendant's motion, see July 2, 2021 Text Order; see also Civil LR 7.1(E) ("Whenever an amended pleading is filed, the Clerk will moot any motion attacking the original pleading."). Defendant filed the instant motion to dismiss on August 2, 2021. See Mot. Dismiss 1. Plaintiffs responded, ECF No. 18, and Defendant filed a motion for leave to file a response, ECF No. 19.

DISCUSSION

I. Defendant's Motion for Leave to File a Reply

"No reply to [a] response [to a motion that is not a summary-judgment motion] is permitted without leave of Court." See Civil LR 7.1(B)(3). Defendant argues that its reply will "aid the Court with the disposition of ... novel legal issues," address documents that were attached to Plaintiffs’ response and are extrinsic to the First Amended Class Action Complaint, and serve the interest of completeness. See Mot. Leave File Reply 1–3. Plaintiffs do not oppose Defendant's motion. See id. at 1. Accordingly, Defendant's motion for leave to file a reply is granted. See Shefts v. Petrakis , No. 10-cv-1104, 2011 WL 5930469, at *8 (C.D. Ill. Nov. 29, 2011) ("Typically, reply briefs are permitted if the party opposing a motion has introduced new and unexpected issues in his response to the motion, and the Court finds that a reply from the moving party would be helpful to its disposition of the motion ...."). The Clerk is directed to file Defendant's reply, Mot. Leave File Reply Ex. A, ECF No. 19-1 ("Reply"), on the docket.

II. Motion to Dismiss

a. Legal Standard

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A party may move to dismiss a complaint if it fails to state a claim upon which relief can be granted. Id. 12(b)(6). To analyze the sufficiency of a complaint, the court "must construe it in the light most favorable to the plaintiff, accept well-pleaded facts as true, and draw all inferences in the plaintiff's favor." Carlson v. CSX Transp., Inc. , 758 F.3d 819, 826 (7th Cir. 2014). A court must "determine whether [the complaint's well-pleaded factual allegations] plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). These allegations must "raise a right to relief above the speculative level." Tamayo v. Blagojevich , 526 F.3d 1074, 1084 (7th Cir. 2008) (quotation marks omitted); see also Carlson , 758 F.3d at 826–27 ("A claim must be plausible rather than merely conceivable or speculative, meaning that the plaintiff must include enough details about the subject-matter of the case to present a story that holds together." (citations and quotation marks omitted)).

b. Analysis

Defendant raises three separate arguments for dismissal. Mot. Dismiss 1–2. First, Defendant argues that Plaintiff H.K.’s claim must be dismissed because BIPA is explicitly and implicitly preempted by the federal Children's Online Privacy Protection Act ("COPPA"), 15 §§ U.S.C. 6501–06, which regulates the online collection of personal information from children who, like H.K., are under the age of 13 See Mot. Dismiss 8–12. Second, Defendant argues that the Illinois Student Online Personal Protection Act ("SOPPA"), 105 ILCS 85/1–99, exclusively governs the collection, use, and protection of personal data, including biometric data, in Illinois K–12 schools. See Mot. Dismiss 12–18. Third, Defendant argues that Plaintiffs’ First Amended Class Action Complaint fails to plausibly state a claim for relief under BIPA. See id. at 18–22. The Court will begin by examining whether Plaintiffs have stated a claim and then address the COPPA and SOPPA issues.

i. Failure to State a Claim

Defendant contends Plaintiffs’ First Amended Class Action Complaint fails to plausibly suggest that Defendant collected Plaintiffs’ biometric data and "merely restates BIPA's statutory language with a varnish of technospeak." See id. at 18–19. The gist of this argument is that Plaintiffs’ claims that Defendant has gathered students’ biometric data simply do not "hold together" without additional factual allegations. See id. at 21 (quotation marks omitted).

To suggest Plaintiffs’ allegations are insufficient to support an inference that Google collected biometric data from students, Defendant relies primarily on two cases. See id. at 19, 22; see also Reply 18. Upon inspection, neither is particularly helpful to its argument. The...