Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 1 of 26
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE
`
`STEVEN VANCE and TIM JANECYK, for
`themselves and others similarly situated,
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`Plaintiffs,
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`No. ________________
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`CLASS ACTION COMPLAINT
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`JURY DEMAND
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`v.
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`MICROSOFT CORPORATION,
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`Defendant.
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`CLASS ACTION COMPLAINT
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`Plaintiffs STEVEN VANCE and TIM JANECYK, on behalf of themselves and all other
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`similarly situated individuals (“Plaintiffs”), by and through their respective attorneys, bring this
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`Class Action Complaint against Defendant Microsoft Corporation (“Microsoft”) and allege the
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`following:
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`INTRODUCTION
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`1.
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`Facial recognition technology – once a thing only seen in movies – now
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`threatens to end individual privacy. Public and private entities increasingly deploy facial
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`recognition products to determine a private citizens’ identities, as well as other personal
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`information, such as their addresses, phone numbers, whereabouts and acquaintances.
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`2.
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`Unlike the way facial recognition technology is depicted in the movies, the
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`actual technology is plagued by a major problem – it is inaccurate, especially when it comes to
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`correctly identifying women and people of color.
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`3.
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`In recent years, an “arms race” has developed amongst for-profit companies
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`seeking to become market leaders in the facial recognition arena. Critical to winning this battle
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`CLASS ACTION COMPLAINT - 1
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`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 2 of 26
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`has been to the ability to claim a low identification error rate – i.e., the for-profit companies
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`want to herald the accuracy of their products, including accuracy in identifying woman and
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`people of color.
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`4.
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`In its effort to improve its facial recognition technology, Defendant Microsoft
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`violated Illinois’ Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”), by,
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`among other things, unlawfully collecting, obtaining, storing, using, possessing and profiting
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`from the biometric identifiers and information of Plaintiffs Vance and Janecyk and all other
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`similarly situated Illinois residents and citizens (hereinafter, the “Class Members”).
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`5.
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`Plaintiffs bring this Class Action Complaint seeking: (a) statutory damages of
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`$5,000 per BIPA violation, or, alternatively, if Defendant Microsoft acted negligently, $1,000
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`per BIPA violation, along with attorneys’ fees and costs; (b) disgorgement of Defendant’s ill-
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`gotten gains derived from the use of the unlawfully-acquired data; and (c) an injunction (i)
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`barring Defendant from any further use of Illinois citizens’ and residents’ biometric identifiers
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`and information; (ii) barring Defendant from continuing to collect, obtain, store, use, possess
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`and profit from Plaintiffs’ and Class Members’ biometric identifiers and information; and (iii)
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`requiring Defendant to delete and destroy Plaintiffs’ and Class Members’ biometric identifiers
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`and information.
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`PARTIES
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`6.
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`At relevant times, Plaintiff STEVEN VANCE was – and remains – an Illinois
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`resident who lived in the Northern District of Illinois. Defendant Microsoft collected, obtained,
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`stored, used, possessed and profited from Plaintiff Vance’s biometric identifiers and
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`information – namely, facial geometric scans of Plaintiff Vance.
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`CLASS ACTION COMPLAINT - 2
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`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 3 of 26
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`7.
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`At relevant times, Plaintiff TIM JANECYK was – and remains – an Illinois
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`resident who lived in the Northern District of Illinois. Defendant Microsoft collected, obtained,
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`stored, used, possessed and profited from Plaintiff Janecyk’s biometric identifiers and
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`information – namely, facial geometric scans of Plaintiff Janecyk.
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`8.
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`Defendant Microsoft
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`is a Washington corporation based
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`in Redmond,
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`Washington.
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`JURISDICTION AND VENUE
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`9.
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`This Court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2) (the “Class Action
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`Fairness Act”) because sufficient diversity of citizenship exists between the parties in this action,
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`the aggregate amount in controversy exceeds $5,000,000, exclusive of interests and costs, and
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`there are 100 or more members of the Class. Because it is estimated that the Class will have
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`thousands of members and Defendant Microsoft’s intentional and reckless violations of BIPA
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`are punishable by statutory damages of $5,000 per violation, the amount in controversy is well
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`in excess of $5,000,000. This Court has supplemental jurisdiction over the state law claim
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`pursuant to 28 U.S.C. § 1367.
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`10.
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`This Court has personal jurisdiction over Defendant Microsoft because it is at
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`home in the Western District of Washington. As alleged above, Microsoft is a Washington
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`corporation headquartered in Redmond, Washington.
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`11.
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`Venue is proper under 28 U.S.C. § 1391(b)(1) because Defendant Microsoft
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`resides in the Western District of Washington.
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`CLASS ACTION COMPLAINT - 3
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`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 4 of 26
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`Biometric Identifiers
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`FACTUAL ALLEGATIONS
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`12.
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`Every individual has unique features by which he or she can be identified using a
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`set of standard quantitative measurements, commonly referred to as “biometric identifiers.”
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`13.
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`For example, the shape of and distance between tiny ridges on each person’s
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`finger are unique, so measures of those features can be used to identify a specific individual as
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`the person who made a fingerprint.
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`14.
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`Each person also has a unique facial geometry composed of, among other
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`measures, distances between key facial landmarks and ratios between those distances.
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`15.
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`Once a picture of a person’s face is scanned and its biometric measurements are
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`captured, computers can store that information and use it to identify that individual any other
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`time that person’s face appears on the internet, in a scanned picture or footage from any of the
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`billions of cameras that are constantly monitoring the public’s daily lives.
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`16.
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`Unlike fingerprints, however, facial biometrics are readily observable and, thus,
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`present a grave and immediate danger to privacy, individual autonomy and liberty.
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`The Illinois Biometric Information Privacy Act
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`17.
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`Through BIPA, Illinois strictly regulates the collection, obtainment, storage, and
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`use of biometric identifiers and information.
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`18.
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`Under BIPA, biometric identifiers include a scan of an individual’s face
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`geometry. 740 ILCS § 14/10.
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`19.
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`Under BIPA, biometric information is “any information . . . based on an
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`individual’s biometric identifier used to identify an individual.” 740 ILCS § 14/10.
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`CLASS ACTION COMPLAINT - 4
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`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 5 of 26
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`20.
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`According to the Illinois General Assembly: “[b]iometrics are unlike other
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`unique identifiers that are used to access finances or other sensitive information. For example,
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`social security numbers, when compromised, can be changed. Biometrics, however, are
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`biologically unique to the individual; therefore, once compromised, the individual has no
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`recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric-
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`facilitated transactions.” 740 ILCS § 14/5(c).
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`21.
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`Pursuant to BIPA, a private entity is, among other things: (a) prohibited from
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`collecting or otherwise obtaining an individual’s biometric identifiers and information without
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`providing written notice and obtaining a written release; (b) prohibited from profiting from an
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`individual’s biometric identifiers and information; and (c) required, to the extent it is in
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`possession of biometric identifiers or information, to develop a written policy, made available to
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`the public, that establishes a retention schedule and guidelines for permanently destroying such
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`identifiers and information. 740 ILCS § 14/15.
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`22.
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`BIPA provides for a private right of action and allows a prevailing party to
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`recover liquidated damages in the amount of: (a) $1,000 or actual damages, whichever is greater,
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`for negligent violations of its provisions; and (b) $5,000 or actual damages, whichever is greater,
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`for intentional or reckless violations of its provisions. 740 ILCS § 14/20. BIPA also allows for
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`the recovery of attorneys’ fees and costs and injunctive relief. 740 ILCS § 14/20.
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`Facial Recognition Technology
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`23.
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`Facial recognition is a form of computer artificial intelligence, the goal of which
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`is to “create systems that detect, recognize, verify and understand characteristics of human
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`faces.”1
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`1 Michele Merler, et al., Diversity in Faces, IBM Research AI (Apr. 10, 2019) (“Diversity in Faces”).
`CLASS ACTION COMPLAINT - 5
`
`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 6 of 26
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`24.
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`To do this well, the algorithms driving facial recognition technology must be
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`trained with and fed vast quantities of images of a diverse array of faces. To satisfy the ever-
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`growing demand for myriad high-resolution images of faces, unchecked companies have begun
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`turning to the internet, where photographs are sometimes taken without the photographer’s or
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`subject’s knowledge or consent. This has been called the dirty little secret of AI training sets.
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`Researchers often just grab whatever images they can find “in the wild.”
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`25.
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`Facial recognition products rely on machine learning algorithms that are trained
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`with labeled data.2 As a result, algorithms trained with biased data can result in algorithmic
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`discrimination3 which, in turn, can lead to facial recognition products that are less effective at
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`identifying certain types of faces.
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`26.
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`For example, an algorithm trained on a dataset that underrepresents a group or
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`subgroup – e.g., woman or people of color – will have a higher rate of error with respect to
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`identifying members of those groups or subgroups.
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`27.
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`Historically, available datasets on which facial recognition algorithms were
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`trained contained a disproportionate number of light-skinned males.
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`Flickr
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`28.
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`At relevant times, Flickr was a photo-sharing website that had access to over 100
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`million photographs posted by Flickr users.
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`29.
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`In or about 2014, Flickr – through its parent company Yahoo! – compiled
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`approximately 100 million Flickr photographs into a single dataset (the “Flickr Dataset”) and
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`made the dataset publicly available.
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`
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`2 Joy Buolamwini, et al., Gender Shades: Intersectional Accuracy Disparities in Commercial Gender
`Classification, Proceedings of Machine Learning Research 81:1-15 (2018) at 1.
`3 Id.
`CLASS ACTION COMPLAINT - 6
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`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 7 of 26
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`30.
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`Flickr did so without informing or receiving the consent of the individuals who
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`uploaded these photographs to Flickr or who appeared in these photographs.
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`31.
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`Flickr contended that its purpose in releasing the Flickr Dataset was to help
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`improve the accuracy and reliability of facial recognition technology.
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`32.
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`The Flickr Dataset contained images of Illinois citizens and residents, including
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`images of Plaintiffs and Class Members.
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`The Gender Shades Study
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`33.
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`In or about February 2018, researchers released Gender Shades: Intersectional
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`Accuracy Disparities in Commercial Gender Classification (“Gender Shades”) in which they
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`noted that prior studies had shown that “machine learning algorithms can discriminate based on
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`classes like race and gender.”4
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`34.
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`Building on that prior research, the researchers analyzed three commercial facial
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`recognition products – including a Microsoft product – focusing on each product’s ability to
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`accurately identify gender.5
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`35.
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`The study determined that each product more accurately classified: (a) males
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`than females; and (b) lighter individuals than darker individuals.6
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`36.
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`Significantly, the error rate with respect to accurately classifying darker females
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`was 20.8% for Defendant Microsoft, specifically, and as high as approximately 34.7%.7
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`4 Id.
`5 See id. at 8.
`6 Id.
`7 Id. at 9.
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`CLASS ACTION COMPLAINT - 7
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`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 8 of 26
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`37.
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`The researchers concluded that the “most improvement is needed on darker
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`females specifically. More broadly, the error gaps between male and female classification along
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`with lighter and darker classification should be closed.”8
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`Response to Gender Shades
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`38.
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`In the aftermath of Gender Shades, companies felt pressured to improve the
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`accuracy of, and reduce the bias in, their facial recognition products.
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`39.
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`In or about April 2019, International Business Machines Corporation (“IBM”)
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`noted that a “critical aspect limiting face recognition performance in practice is facial diversity,”
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`begging the question “does the training data for [face recognition] systems fairly represent the
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`distribution of faces we see in the world?”9
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`40.
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`To respond to the issue, IBM created Diversity in Faces – a new dataset
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`consisting of one million images culled from the Flickr Dataset – for the purpose of improving
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`the ability of facial recognition systems to fairly and accurately identify all individuals (the
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`“Diversity in Faces Dataset”).10
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`41.
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`In creating the Diversity in Faces Dataset, IBM scanned the facial geometry of
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`each image contained in the dataset and created a “comprehensive set of annotations of intrinsic
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`facial features that includes craniofacial distances, areas and ratios, facial symmetry and
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`contrast, skin color, age and gender predictions, subjective annotations, and pose and
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`resolution.”11
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`
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`8 Id. at 11.
`9 Diversity in Faces, supra, at 1.
`10 See id.
`11 Id. at 2.
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`CLASS ACTION COMPLAINT - 8
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`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 9 of 26
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`42.
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`To build the Diversity in Faces Database, IBM extracted 19 facial landmark
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`points from each image in the dataset to determine 68 key points for each face.12
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`43.
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`IBM used the 19 facial landmark points to extract craniofacial features for each
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`image, as shown in the figure below13:
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`44.
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`The Diversity in Faces Dataset contained the biometric identifiers and
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`information of Plaintiffs and Class Members.
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`45.
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`IBM did not seek nor receive permission from Plaintiffs or Class Members to
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`include their images in the Diversity in Faces Dataset, let alone to perform scans of their facial
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`geometries or to otherwise collect, obtain, store, use, possess or profit from their biometric
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`identifiers and information.
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`12 Id. at 9.
`13 Id. at 9-10.
`CLASS ACTION COMPLAINT - 9
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`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 10 of 26
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`46.
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`In or about April 2019, IBM published a journal article describing the Diversity
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`in Faces Dataset in great detail and making clear that the dataset contained the biometric
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`identifiers and information of each individual who appeared in the dataset.
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`47.
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`IBM made the Diversity in Faces Dataset available to other for-profit companies
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`that developed, produced, marketed, sold or otherwise used facial recognition products and
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`technologies in connection with their for-profit businesses.14
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`48.
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`To obtain the Diversity in Faces Dataset from IBM, a company had to apply for
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`permission from IBM via an online questionnaire.
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`49.
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`If IBM granted access to the Diversity in Faces Dataset, the company seeking
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`access had to download the dataset from a link provided by IBM.
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`50.
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`The information provided to companies that downloaded the Diversity in Faces
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`Dataset included the biometric identifiers and information extracted from each photograph in
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`the dataset and links to each photograph on Flickr from which IBM extracted the biometric data.
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`51.
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`From the Flickr links IBM provided to companies that downloaded the Diversity
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`in Faces Dataset, the companies were able to identify the Flickr user who uploaded the
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`photograph to Flickr, view the Flickr user’s homepage and other posted material, and view each
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`photograph’s metadata, including any available geo-tags relating to where the photograph was
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`taken or uploaded.
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`Defendant Microsoft Obtained the Diversity in Faces Dataset
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`52.
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`At relevant times, Defendant Microsoft developed, produced, marketed and
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`otherwise used facial recognition products and technologies in connection with its business.
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`14 See Diversity in Faces, supra.
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`CLASS ACTION COMPLAINT - 10
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`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 11 of 26
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`53.
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`Among Defendant Microsoft’s facial recognition products were its Cognitive
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`Services Face Application Program Interface and its Face Artificial Intelligence service that
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`allowed customers to embed facial recognition into their apps without having to have any
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`machine learning expertise.
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`54.
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`At relevant times, Defendant Microsoft was aware of the importance of
`
`companies following the rule of law when it comes to facial recognition technology and urged
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`governments to regulate the technology.15
`
`55.
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`After IBM made the Diversity in Faces Dataset available, Defendant Microsoft
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`applied for and obtained the Diversity in Faces Dataset from IBM.
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`56.
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`On information and belief, upon obtaining the Diversity in Faces Dataset from
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`IBM, Defendant Microsoft used the links provided by IBM to download, copy or otherwise
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`obtain from Flickr each photograph in the dataset, including Plaintiffs’ photographs, in order to
`
`associate the biometric identifiers and information provided by IBM with the actual
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`photographs to which the biometric data related.
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`57.
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`Defendant Microsoft obtained the Diversity in Faces Dataset in order to improve
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`the fairness and accuracy of its facial recognition products and technologies.
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`58.
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`Defendant Microsoft profited from the biometric identifiers and information
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`contained in the Diversity in Faces Dataset because those biometric identifiers and information
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`allowed Microsoft to improve its facial recognition products and technologies, including, upon
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`information and belief, by allowing Microsoft to improve the effectiveness of its facial
`
`
`
`15 Brad Smith, Facial Recognition: It’s Time for Action, Microsoft on the Issues (Dec. 6, 2018),
`https://blogs.microsoft.com/on-the-issues/2018/12/06/facial-recognition-its-time-for-action/ (last
`accessed on Mar. 23, 2020).
`
`CLASS ACTION COMPLAINT - 11
`
`
`
`
`
`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
`

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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 12 of 26
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`recognition technology on a diverse array of faces, thereby making those products and
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`technologies more valuable in the commercial marketplace.
`
`59.
`
`Defendant Microsoft conducted extensive business within Illinois related to the
`
`facial recognition products it unlawfully developed using Plaintiffs’ and Class Members’
`
`biometric identifiers and information, including: (i) selling its facial recognition products to
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`third-party clients through an Illinois-based vendor; (ii) working closely with an Illinois-based
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`business to build new applications for its facial recognition technology; and (iii) working with
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`the University of Illinois, among others, to build and promote a “digital transformation institute”
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`aimed at “accelerating the application of artificial intelligence” throughout business and society.
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`As such, Illinois had and has a direct interest in regulating the unlawful conduct alleged herein
`
`in order to protect the rights and interests of its residents and citizens.
`
`Allegations Related to Plaintiff Vance
`
`60.
`
`In or about 2008, Plaintiff Vance uploaded to Flickr from his computer in Illinois
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`a photograph of himself and two family members (the “2008 Photo”).
`
`61.
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`In addition to the 2008 Photo, Plaintiff Vance uploaded numerous other
`
`photographs to Flickr.
`
`62.
`
`At relevant times, Plaintiff Vance’s publicly-accessible Flickr profile page
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`clearly identified his Chicago, Illinois residence and provided a method for those accessing his
`
`page to contact him directly via Flickr’s internal “FlickrMail” direct message system, which
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`Defendant Microsoft chose not to do.
`
`63.
`
`The 2008 Photo, as well as numerous other photographs uploaded to Flickr by
`
`Plaintiff Vance, were part of the Diversity in Faces Dataset obtained by Defendant Microsoft.
`
`CLASS ACTION COMPLAINT - 12
`
`
`
`
`
`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
`

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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 13 of 26
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`64.
`
`Based on the links Defendant Microsoft received from IBM, at relevant times, it
`
`knew that each of Plaintiff Vance’s photographs in the Diversity in Faces Dataset – including
`
`the 2008 Photo – originated from, and was affiliated with, his Flickr account.
`
`65.
`
`Defendant Microsoft never advised or informed Plaintiff Vance or his legal
`
`authorized representative in writing: (a) that it collected, stored and used Plaintiff Vance’s
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`biometric identifiers and information; or (b) of the specific purpose and length of term for
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`which Plaintiff Vance’s biometric identifiers and information were being collected, stored and
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`used.
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`66.
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`Defendant Microsoft never received a written release executed by Plaintiff
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`Vance or his legally authorized representative to collect, capture, receive, obtain, store or use
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`his biometric identifiers and information.
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`67.
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`As alleged in more detail below, Defendant Microsoft’s conduct has injured
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`Plaintiff Vance and subjected him to additional imminent and certainly impending injuries.
`
`Allegations Related to Plaintiff Janecyk
`
`68.
`
`Plaintiff Janecyk is an accomplished photographer, having focused his work in
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`portraiture and street life photography.
`
`69.
`
`In 2008, Plaintiff Janecyk signed up for a Flickr account in the Village of Tinley
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`Park, Illinois, and has since then uploaded in excess of a thousand of his photographs to Flickr.
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`Among those photographs is a 2011 photograph depicting Plaintiff Janecyk’s own face (the
`
`“2011 Photo”), which Plaintiff Janecyk uploaded to Flickr from his device in Illinois.
`
`70.
`
`At relevant times, Plaintiff Janecyk’s publicly-accessible Flickr profile page
`
`clearly identified his Illinois residence and provided a method for those accessing his page to
`
`CLASS ACTION COMPLAINT - 13
`
`
`
`
`
`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
`

`

`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 14 of 26
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`contact him directly via Flickr’s internal “FlickrMail” direct message system, which Defendant
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`Microsoft chose not to do.
`
`71.
`
`The 2011 Photo, as well as numerous other photographs uploaded to Flickr by
`
`Plaintiff Janecyk, were part of the Diversity in Faces Dataset obtained by Defendant Microsoft.
`
`72.
`
`Based on the links Defendant Microsoft received from IBM, at relevant times, it
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`knew that each of Plaintiff Janecyk’s photographs in the Diversity in Faces Dataset – including
`
`the 2011 Photo – originated from, and was affiliated with, his Flickr account.
`
`73.
`
`Defendant Microsoft never advised or informed Plaintiff Janecyk or his legal
`
`authorized representative in writing: (a) that it collected, stored and used Plaintiff Janecyk’s
`
`biometric identifiers and information; or (b) of the specific purpose and length of term for
`
`which Plaintiff Janecyk’s biometric identifiers and information were being collected, stored and
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`used.
`
`74.
`
`Defendant Microsoft never received a written release executed by Plaintiff
`
`Janecyk or his legally authorized representative to obtain, collect, store or use his biometric
`
`identifiers and information.
`
`75.
`
`As alleged in more detail below, Defendant Microsoft’s conduct has injured
`
`Plaintiff Janecyk and subjected him to additional imminent and certainly impending injuries.
`
`Plaintiffs’ and Class Members’ Injuries and Damages
`
`76.
`
`As a result of Defendant Microsoft’s unlawful conduct, Plaintiffs and Class
`
`Members have already sustained injuries and face many more imminent and certainly
`
`impending injuries, which injuries they will continue to suffer.
`
`77.
`
`Defendant Microsoft chose to use and profit from biometric identifiers and
`
`information scanned from photographs that were uploaded from Illinois; managed via Illinois-
`
`CLASS ACTION COMPLAINT - 14
`
`
`
`
`
`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
`

`

`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 15 of 26
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`based user accounts, computers and mobile devices; and/or created in Illinois. In so doing,
`
`Microsoft exposed Illinois residents and citizens to ongoing privacy risks within Illinois,
`
`knowing that its conduct would injure those residents and citizens within Illinois. Moreover,
`
`Microsoft knew or had reason to know that obtaining Illinois residents’ and citizens’ biometric
`
`identifiers and information in violation of BIPA would deprive those residents and citizens of
`
`their statutorily-protected privacy rights, neutralize Illinois residents’ and citizens’ abilities to
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`control access to their biometric identifiers and information via their Illinois-managed devices,
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`expose Illinois residents and citizens to potential surveillance and other privacy harms as they
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`went about their lives within the state and deter Plaintiffs and Class Members from publicly
`
`posting photographs. As such, Illinois had and has a direct interest in regulating the unlawful
`
`conduct alleged herein in order to protect the rights and interests of its residents and citizens.
`
`78.
`
`As the Illinois General Assembly has found and the Illinois Supreme Court has
`
`confirmed, the harm to Plaintiffs and Class Members as a result of Defendant Microsoft’s
`
`unlawful conduct has already occurred.
`
`79.
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`Further, as businesses worldwide compete to develop ever more advanced facial
`
`recognition technology, the race for data imperils the privacy of individuals everywhere,
`
`including the privacy of Plaintiffs and Class Members. Public policy in Illinois provides that
`
`given the risks of unwanted data collection and disclosure, its citizens need the power to make
`
`decisions about the fate of their unique biometric identifiers and information. Defendant
`
`Microsoft’s actions – including but not limited to their failure to provide the requisite notice and
`
`obtain the requisite consent – robbed Plaintiffs and Class Members of that power.
`
`80. Moreover, as a result of Defendant Microsoft’s unlawful conduct, Plaintiffs’ and
`
`Class Members’ biometric identifiers and information are no longer under their control and are
`
`CLASS ACTION COMPLAINT - 15
`
`
`
`
`
`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
`

`

`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 16 of 26
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`available to a potentially unlimited range of unknown individuals for whatever uses they please.
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`These injuries, which are imminent and clearly impending, are in addition to the injuries
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`Plaintiffs and Class Members have already sustained as a result of Defendant’s actions.
`
`81.
`
`As a result of Defendant Microsoft’s misconduct, Plaintiffs and Class Members
`
`have no recourse for the fact that their biologically unique information has been compromised.
`
`82. Moreover, as a result of Defendant Microsoft’s misconduct, Plaintiffs and Class
`
`Members are likely to withdraw from biometric-facilitated transactions and other facially-
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`mediated electronic participation.
`
`CLASS ACTION ALLEGATIONS
`
`83.
`
`Plaintiffs bring this action on behalf of themselves and as a class action under
`
`Federal Rule of Civil Procedure 23, seeking damages and equitable relief on behalf of the
`
`following Class for which Plaintiffs seek certification: All Illinois residents whose faces appear
`
`in the Diversity in Faces Dataset obtained by Defendant Microsoft.
`
`84.
`
`Excluded from the Class are: (a) Defendant Microsoft; (b) any parent, affiliate or
`
`subsidiary of Defendant Microsoft; (c) any entity in which Defendant Microsoft has a
`
`controlling interest; (d) any of Defendant Microsoft’s officers or directors; or (e) any successor
`
`or assign of Defendant Microsoft. Also excluded are any judge or court personnel assigned to
`
`this case and members of their immediate families.
`
`85.
`
`Plaintiffs reserve the right to amend or modify the class definitions with greater
`
`specificity or division after having had an opportunity to conduct discovery.
`
`86.
`
`Numerosity. While the exact number of Class Members is not known at this
`
`time, Defendant Microsoft obtained
`
`the biometric
`
`identifiers and
`
`information from
`
`approximately one million images of faces, and Plaintiffs estimate the total number of Class
`
`CLASS ACTION COMPLAINT - 16
`
`
`
`
`
`LOEVY & LOEVY
`100 S. KING ST., #100-748
`SEATTLE, WASHINGTON 98104
`T: 312-243-5900, FAX: 312-243-5092
`
`

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`Case 2:20-cv-01082 Document 1 Filed 07/14/20 Page 17 of 26
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`Members t