Vance v. Google LLC

1

STEVEN VANCE, et al., Plaintiffs, v. GOOGLE LLC, Defendant.

No. 20-cv-04696-BLF

United States District Court, N.D. California, San Jose Division

December 5, 2024

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS [RE: ECF NO. 108]

BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Google LLC's (“Defendant”) Motion to Dismiss Amended Complaint. ECF 108. Plaintiffs Steven Vance and Tim Janecyk individually and on behalf of others similarly situated (collectively, “Plaintiffs”), oppose Defendant's motion. ECF 111. The Court has considered the motion, the relevant portions of the record, and arguments made during a hearing on October 10, 2024. For the reasons described below, Defendant's Motion is GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND

A. Procedural History

Plaintiffs filed their initial complaint on July 14, 2020. ECF 1. The case was stayed pending the resolution of Plaintiffs' related suit against International Business Machines Corporation (“IBM”), Vance v. IBM, No. 1:20-cv-00577 (N.D. Ill). ECF 33, 36. The Court lifted the stay on August 28, 2023. ECF 89. On October 12, 2023, Defendant moved to dismiss the initial complaint. ECF 92. On March 15, 2024, the Court granted Defendant's motion and dismissed Plaintiffs' BIPA claims without prejudice, unjust enrichment claim without prejudice, and injunctive relief claim with prejudice. See ECF 103, Motion to Dismiss Order. On April 15, 2024, Plaintiffs filed an amended complaint (“FAC”). ECF 104. On May 31, 2024, Defendant filed the instant motion to dismiss Plaintiffs' amended complaint. ECF 108.

B. Factual Allegations

The Court discussed the factual and procedural backgrounds of this case in its previous Order on Defendant's Motion to Dismiss Complaint. ECF 103. Thus, the Court only summarizes here the facts most relevant to the present motion.

Plaintiffs Steven Vance and Tim Janecyk, both Illinois residents, publicly posted photographs containing their faces to Flickr, an online photo management and sharing website. ECF 104, ¶¶ 29-30, 69-74, 82-88. In or about 2014, Flickr compiled approximately 100 million Flickr photographs into a single dataset (the “Flickr Dataset”) and made the dataset publicly available. Id., ¶ 29. The Flickr Dataset contained those photographs uploaded by lead Plaintiffs and facial images of other Illinois citizens and residents. Id., ¶ 31. The Flickr Dataset also contained substantial information about each photo and its uploader, including unique identifiers, user details, and location data, without the uploader's knowledge or express consent. Id., ¶¶ 30-34.

In response to research highlighting bias and deficiencies in facial recognition technology, particularly the "Gender Shades" study released in 2018, IBM created the Diversity in Faces Dataset (“DiF Dataset”) in 2019. Id., ¶¶ 35-42. The DiF Dataset, consisting of one million images from the Flickr Dataset, was designed to improve facial recognition systems' accuracy across diverse populations. Id., ¶¶ 45-48. Without permission from lead Plaintiffs or other class members, IBM scanned the facial geometry of each image contained in the DiF Dataset, extracted biometric identifiers and information from those images, including craniofacial features and facial landmark points, and made the DiF Dataset available to other for-profit companies developing facial recognition technologies. Id., ¶¶ 43-53; 75-76; 89-93.

Defendant, which used facial recognition technology in various products such as Google Pixel smartphones and Google Photos software applications, obtained the DiF Dataset from IBM. Id., ¶¶ 54-56, 59-60. Defendant aimed to improve the fairness and accuracy of its facial recognition products using the DiF Dataset, particularly for the facial unlock features of the Pixel smartphones. Id., ¶¶ 58-65.

Plaintiffs allege Defendant has maintained a presence in Illinois since 2000. Id., ¶ 66. By 2015, Google had established a large office complex housing 600 employees across 372,000 square feet. Id. By 2019, Google's presence in Chicago expanded further as it obtained a second office in Chicago with a 132,000-square-foot space and increased its total headcount in Chicago to about 1,200 employees. Id. Defendant's Chicago office employed engineers and technical staff and focused on engineering products, including the Pixel smartphone Id., ¶¶ 67-68. The engineering team sought to improve the Pixel smartphones' face unlock technology using diverse data, which aligned with the content of the DiF Dataset. Id., ¶ 68.

II. LEGAL STANDARD

“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.'” Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts as true all well-pled factual allegations and construes them in the light most favorable to the plaintiff. Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court need not “accept as true allegations that contradict matters properly subject to judicial notice” or “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). While a complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. On a motion to dismiss, the Court's review is limited to the face of the complaint and matters judicially noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983).

III. DISCUSSION

A. BIPA Claims

The Illinois Biometric Information Privacy Act (“BIPA”) regulates the use of an individual's biometric data. See 740 ILCS § 14/1, et seq. Under Illinois law, “biometric identifiers” include a “scan of . . . face geometry,” and “biometric information” is “any information . . . based on an individual's biometric identifier used to identify an individual.” Id. § 14/10. Two BIPA provisions are at issue in this case: (1) no private entity may “collect, capture, purchase, receive through trade, or otherwise obtain a person's or a customer's biometric identifier or biometric information” without providing written notice and obtaining a written release, id. § 14/15(b) (“Section 15(b)”); and (2) no private entity “in possession of a biometric identifier or biometric information may sell, lease, trade, or otherwise profit from a person's or a customer's biometric identifier or biometric information,” id. § 14/15(c) (“Section 15(c)”) (emphasis added). BIPA provides for a private right of action and allows a prevailing party to recover liquidated damages in the amount of: (1) $1,000 or actual damages, whichever is greater, for negligent violations and (2) $5,000 or actual damages, whichever is greater, for intentional or reckless violations. Id. § 14/20. BIPA also allows for the recovery of attorneys' fees and costs and injunctive relief. Id.

The Plaintiffs bring two claims under BIPA. First, Plaintiffs allege Defendant violated Section 15(b) because Google collected Plaintiffs' biometric information “without providing the requisite written information and without obtaining the requisite written releases.” ECF 104, ¶¶ 113-119.

Second, Plaintiffs allege Defendant violated Section 15(c) because it “profited from” Plaintiffs' biometric information. Id., ¶¶ 127-136. Google challenges both BIPA claims on two grounds. First, Google argues that both BIPA claims fail because the FAC still fails to allege the violations “occur[ed] primarily and substantially in Illinois.” ECF 108 at 8. Second, Google argues that Plaintiffs' claim under Section 15(c) fails because Plaintiffs have still failed to plead Google “otherwise profit[ed] from” Plaintiffs' biometric information. ECF 108 at 10-15. The Court addresses the arguments in turn.

1. Extraterritoriality

Under Illinois law, a “statute is without extraterritorial effect unless a clear intent in this respect appears from the express provisions of the statute.” Avery v. State Farm Mut. Ins. Co., 835 N.E.2d 801, 852 (Ill. 2005) (internal quotation marks omitted). BIPA does not contain an express provision stating it is intended to apply extraterritorially. See Monroy v. Shutterfly, Inc., 2017 WL 4099846, at *5 (N.D. Ill. Sept. 15, 2017). Therefore, BIPA violations must occur in Illinois for plaintiffs to obtain any relief. Rivera v. Google Inc., 238 F.Supp.3d 1088, 1100 (N.D. Ill. 2017) (“[The plaintiffs'] asserted violations of [BIPA] must have taken place in Illinois in order for them to win.”). The applicable test is whether the circumstances “occur[ed] primarily and substantially in Illinois.” Avery, 835 N.E.2d at 854; see also Rivera, 238 F.Supp.3d at 1101. There is “no single formula or bright-line test for determining whether a transaction occurs within [Illinois].” Avery, 835 N.E.2d at 854. Rather, “each case must be decided on its own fact.” Id.

Defendant contends that Plaintiffs still attempt to apply BIPA extraterritorially and have still failed to plead facts that the alleged violation occurred primarily and substantially in Illinois. ECF 108 at 8-10. Specifically, Defendant argues that Plaintiffs...