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Monroy v. Shutterfly, Inc.

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

September 15, 2017

ALEJANDRO MONROY, on behalf of himself and all others similarly situated, Plaintiffs,
SHUTTERFLY, INC., Defendant.



         Alejandro Monroy (“Monroy”) brings this putative class action alleging that defendant Shutterfly, Inc. (“Shutterfly”) violated Illinois' Biometric Information Privacy Act (BIPA), 740 Ill. Comp. Stat. 14/1 et seq. Shutterfly has moved to dismiss the complaint on several grounds. For the reasons discussed below, the motion is denied.

         I. BACKGROUND

         Shutterfly is the operator of websites that allow users to upload, organize, and share digital photographs. When a user uploads a photo, Shutterfly's facial recognition software scans the image, locates each of the faces in the image, and extracts a highly detailed “map” or “template” for each face based on its unique points and contours. According to the complaint, a person can be uniquely identified by his face geometry in the same way that he can be identified by his fingerprints. Compl. ¶ 5.

         The complaint further alleges that Shutterfly stores these maps of face geometry in a massive database, and that whenever a new image is uploaded onto Shutterfly's site, the faces in the image are compared against those in the database. If a face's geometry matches that of an individual already in its database, Shutterfly suggests that the user “tag” the image with the individual's name. Id. ¶ 23. If no match is found, Shutterfly prompts the user to enter a name. Id.

         Monroy alleges that in September 2014, an unnamed Shutterfly user residing in Chicago uploaded a photograph of Monroy onto a Shutterfly site. According to the complaint, “Shutterfly automatically located Plaintiff's face, analyzed the geometric data relating to the unique contours of his face and the distances between his eyes, nose and ears, and used that data to extract and collect Plaintiff's scan of face geometry.” Id. ¶¶ 29-30. Monroy further says that Shutterfly prompted the uploader to tag the face with a name, and that the user entered “Alex Monroy.” The complaint also states that Shutterfly then stored Monroy's biometric data in its database, and that based on the scan, it extracted and stored additional information regarding his gender, age, race, and geographical location. Id. ¶ 32. Monroy does not use Shutterfly and never consented to Shutterfly's extraction and storage of data representing his face geometry. Id. ¶¶ 33-34.

         According to Monroy, Shutterfly's collection and storage of this data violates BIPA. Passed in 2008, BIPA was the first law in the nation to address the collection and storage of biometric data.[1] The legislative findings that precede the statute's substantive provisions observe that the “use of biometrics is growing in the business and security screening sectors and appears to promise streamlined financial transactions and security screenings.” 740 Ill. Comp. Stat. 14/5(a). However, the legislature also notes that the “overwhelming majority of members of the public are weary of the use of biometrics when such information is tied to finances and other personal information.” Id. § 14/5(d). This is because, unlike social security numbers and other personal information, biometrics “are biologically unique to the individual … [so that] once compromised, the individual has no recourse, [and] is at heightened risk for identity theft.” Id. § 14/5(c).

         Among other things, BIPA requires private entities in possession of biometric data to develop publicly available written policies containing guidelines for permanently destroying the data within a specific time period. Id. § 14/15(a). In addition, BIPA prohibits private entities from collecting, capturing, or otherwise obtaining an individual's biometric data without first informing him or her in writing, and disclosing the specific purpose and length of time for which the data is being collected and stored. Id. § 14/15(b)(1)-(2). Entities are prohibited from collecting and storing a person's biometric data unless he or she first executes a written release. Id. § 14/15(b)(3).

         Monroy brings this suit on behalf of himself and a putative class consisting of “[a]ll individuals who are not users of Shutterfly and who had their biometric identifier, including scan of face geometry, collected, captured, received, or otherwise obtained by Shutterfly from a photograph uploaded to Shutterfly's website from within the state of Illinois.” Compl. ¶ 36. Shutterfly moves to dismiss under Federal Rule of Civil Procedure 12(b)(6).


         “In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint and draws all reasonable inferences from those facts in the plaintiff's favor.” United States Sec. & Exch. Comm'n v. Ustian, 229 F.Supp.3d 739, 760 (N.D. Ill. 2017) (citing AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011)). Shutterfly claims that Monroy's complaint must be dismissed because: (1) BIPA's statutory text makes clear that it does not apply to scans of face geometry obtained from photographs; (2) Monroy's suit requires an impermissible extraterritorial application of the statute; and (3) BIPA requires a plaintiff to allege actual damages, and Monroy has failed to do so. The court considers these arguments seriatim.

         A. BIPA's Application to Scans from Photographs

         Shutterfly first contends that BIPA's statutory text demonstrates that the act does not apply to biometric data obtained from photographs. Its argument is based on the statute's definitions of the terms “biometric identifier” and “biometric information, ” which are as follows:

“Biometric identifier” means a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry. Biometric identifiers do not include writing samples, written signatures, photographs, human biological samples used for valid scientific testing or screening, demographic data, tattoo descriptions, or physical descriptions such as height, weight, hair color, or eye color. Biometric identifiers do not include donated organs, tissues, or parts as defined in the Illinois Anatomical Gift Act or blood or serum stored on behalf of recipients or potential recipients of living or cadaveric transplants and obtained or stored by a federally designated organ procurement agency. Biometric identifiers do not include biological materials regulated under the Genetic Information Privacy Act. Biometric identifiers do not include information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under the federal Health Insurance Portability and Accountability Act of 1996. Biometric identifiers do not include an X-ray, roentgen process, computed tomography, MRI, PET scan, mammography, or other image or film of the human anatomy used to diagnose, prognose, or treat an illness or other medical condition or to further validate scientific testing or screening.
“Biometric information” means any information, regardless of how it is captured, converted, stored, or shared, based on an individual's biometric identifier used to identify an individual. Biometric information does not include information derived from items or procedures excluded under the definition of biometric identifiers.

740 Ill. Comp. Stat. 14/10.

         It is clear that the data extracted from Monroy's photograph cannot constitute “biometric information” within the meaning of the statute: photographs are expressly excluded from the definition of “biometric identifier, ” and the definition of “biometric information” expressly excludes “information ...

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