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US Judge Rejects Suit Over Face Scanning for Video Game (newyorklawjournal.com) 69

Two athletes whose images were scanned for a video game have been bounced from court on their claim that the game maker violated a law protecting biometric information. From a report: Brother-and-sister video basketball players Ricardo and Vanessa Vigil were leading a class action that claimed Take-Two Interactive, which manufactured the NBA 2K15 game, ran afoul of an Illinois law that governs biometric identifiers such as retina or iris scans, fingerprints, voiceprints, or scans of hand and face geometry. The Vigils agreed to have their faces scanned to create digital avatars for NBA 2K15, but said they didn't know their images would be available in unencrypted form online. They tried to hold Take-Two liable under the Illinois Biometric Information Privacy Act (BIPA) in Vigil v. Take-Two Interactive Software, 15-cv-8211. Judge John Koetl of the Southern District of New York dismissed the proposed class action suit filed by brother and sister Ricardo and Vanessa Vigil, saying the plaintiffs didn't show "concrete" harm from the way the gaming company stores and uses their biometric data.
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US Judge Rejects Suit Over Face Scanning for Video Game

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  • by speedplane ( 552872 ) on Tuesday January 31, 2017 @04:13PM (#53776383) Homepage
    Available here: https://www.docketalarm.com/ca... [docketalarm.com] Looks like there will be an appeal.
  • by zifn4b ( 1040588 ) on Tuesday January 31, 2017 @04:13PM (#53776387)
    Well the idea that a New York judge is hearing a case about Illinois State Law is already suspicious but the Illinois Law does state:

    (740 ILCS 14/20) Sec. 20. Right of action. Any person aggrieved by a violation of this Act shall have a right of action in a State circuit court or as a supplemental claim in federal district court against an offending party. A prevailing party may recover for each violation: (1) against a private entity that negligently violates a provision of this Act, liquidated damages of $1,000 or actual damages, whichever is greater; (2) against a private entity that intentionally or recklessly violates a provision of this Act, liquidated damages of $5,000 or actual damages, whichever is greater; (3) reasonable attorneys' fees and costs, including expert witness fees and other litigation expenses; and (4) other relief, including an injunction, as the State or federal court may deem appropriate. (Source: P.A. 95-994, eff. 10-3-08.)

    Definition of aggrieved: feeling resentment at having been unfairly treated

    There might be grounds for an appeal but whether it would prevail probably depends on what state/court the case is heard in. Get a good lawyer if you want to go this way you two.

    Entire law here [ilga.gov].

    • by Anonymous Coward

      Well the idea that a New York judge is hearing a case about Illinois State Law is already suspicious but the Illinois Law does state:

      He's not a New York state judicial officer, he's a Federal Judge whose court is in New York.

    • They can potentially sue in Illinois, under Illinois law.
      They tried to sue under federal law, which has already been explained by courts in other cases as follows:
      --
      For an injury-in-fact to be
      `âoeconcrete,â it must be âoereal, and not abstract,â and that a
      `âoebare procedural violationâ under a federal statute, âoedivorced
      `from any concrete harm,â that âoemay result in no harm,â would not
      `âoesatisfy the injury-in-fact requirement.â Id. at 1549
      --

      The

      • Federal law:

        For an injury-in-fact to be "concrete", it must be "real, and not abstract" and that a "bare procedural violation" under a federal statute, "divorced from any concrete harm" that "may result in no harm" would not
        "satisfy the injury-in-fact requirement" Id. at 1549

    • Definition of aggrieved: feeling resentment at having been unfairly treated

      I don't in fact think that is the legal definition of "aggrieved". I think it's that under this law, you have claim to a grievance against you, that is, harm done as defined under the letter of the law. Hmm, yep, teh goog say "An aggrieved party can be any person whose financial, personal, or property rights or interests are adversely affected by an act of another or an order, judgment or statute. An aggrieved party is entitled to challenge the adverse decisions." It's not feeling butt-hurt. It's being able

  • by Anonymous Coward

    I have to register in order to read the fucking article?

    So they can collect my email and the fake data I enter and spam me advertisements in my in-box.

    Registering for content is something stupid people do. There is absolutely no technical reason to require it.

    There is a marketing reason. The goddamn marketers have ruined the web.

    And they have caught on to mailinator and other throw-away email services - try to register on Slashdot with it. Yahoo! sucks because they want a cell phone number now - fuck th

    • by PPH ( 736903 )

      I have to register in order to read the fucking article?

      Yes. And look at the camera on your phone. Hold it ..... [click] .... Got it. Now you can go ahead and exist online*.

      *P.S. You ought to have that mole looked at.

    • by Altrag ( 195300 )

      You make it sound like this is new and/or surprising. As long as corporate greed is given priority over personal liberties, you can expect this to not only continue but get worse as companies and marketing departments continue to see how far they can push before we snap.

      And then push a little further since we don't really have a choice even after we snap -- not using the internet isn't really an option anymore for a significant majority of the population.

      As for throwaway email services.. You can always ju

  • New York (Score:2, Interesting)

    by sexconker ( 1179573 )

    Why are you suing over a violation of Illinois law in New York?

    Regardless, the judge's reasoning is absurd - if Take Two violated the law the plaintiff's don't need to prove further harm. Violation of the law is the harm. The law exists to prevent such use of a person's biometric data because the state of Illinois has determined such use to be harmful.

    The extent to which damages can be awarded can be decided in part by looking at harm caused, punitive assessments set forth in the law, potential harm cause

    • by bws111 ( 1216812 )

      They sued in federal court. The court is in New York, because that is where the defendant is.

    • In their complaint, "the Plaintiffs analogize this practice of facial scanning to the collection of fingerprint data without the consent of the users." My understanding of the process is that the player must deliberately allow their face to be scanned, "Gamers get close to the camera and slowly turn their heads to the left and right while the camera scans their face. The face scanning process takes about 15 minutes to complete, according to the biometric data class action lawsuit." It seems unlikely that

  • by fahrbot-bot ( 874524 ) on Tuesday January 31, 2017 @04:21PM (#53776443)

    ... saying the plaintiffs didn't show "concrete" harm from the way the gaming company stores and uses their biometric data.

    Since the current and future potential problems are not known and biometric data can't really be changed, seems like it would be prudent to want to protect your biometric data *before* something bad happens, and not wait until *after* something bad happens -- you know that "concrete" harm -- that cannot really be undone.

    • by Luthair ( 847766 )
      Its pretty clear these two are attempting to misuse the law. Seems obvious the law was meant to protect users from companies who incorrectly store data, instead these two were paid to appear in a video game and decided they want more money later.
      • by bws111 ( 1216812 )

        They weren't paid to be in the game. They bought the game, and used a feature of the game to create personalized avatars. Then apparently they hatched some get-rich-quick scheme with a shyster who brought a class-action suit.

      • Their biometric data was incorrectly stored. It was completely unencrypted. That particular law is equating, really elevatingto a higher level, biometrics to PII. Read the intent of the law. It's clearly meant to prevent companies from unsafely storing the data and punishing them if any number of things happen. Storing a face/avatar unencrypted easily falls afoul of the intent of the law. Abridged intent of law: (c) Biometrics are unlike other unique identifiers that are used to access finances or oth
        • by bws111 ( 1216812 )

          And none of that is ACTUAL HARM, which is what is required. Furthermore, they don't even CLAIM that the data was incorrectly stored, only that 'it might be'.

          • Read the attached settlement from the Illinois lawsuit before speaking. It doesn't require "actual damages."

            Seriously read the settlement. Since you won't I'll paste part of the summary here:

            The plaintiffs in the L.A. Tan case alleged that the company, which used customers’ fingerprint scans in lieu of key fobs for tanning membership ID purposes, violated the BIPA by failing to obtain the customers’ written consent to use the fingerprint data and by not disclosing to customers the company
            • by bws111 ( 1216812 )

              That might actually mean something if Illinois law meant anything in FEDERAL court (where this case was). Federal law is:

              For an injury-in-fact to be "concrete", it must be "real, and not abstract" and that a "bare procedural violation" under a federal statute, "divorced from any concrete harm" that "may result in no harm" would not "satisfy the injury-in-fact requirement"

    • Isn't that the way it has to be? If you can successfully sue someone for doing something which might cause you harm, that's going to stop the economy cold. The ambulance chasers would have a field day suing everyone and everything for near-misses, potential risks, negligence which had no consequences (like rolling stops, driving over the speed limit), etc.
  • the NCAA says you get nothing and yes joke classes are needed when the team needs 40-60 hours a week you don't have time for class.

  • by Seng ( 697556 )

    So, you scan your face to use in a game playable online, then bitch that the image of your face can be seen online?

    What kind of box of rocks did those two crawl out of?

  • If they lived in Washington State, they could sue.

    And win.

  • To continue reading, become a free ALM digital reader.

    Eh... no.

    Are you allowed to copy/paste from a paywalled article? I guess we could ask ALM, they'd know.

    Two athletes

    Brother-and-sister video basketball players

    They're video basketball players? That's not very athletic.

  • Huh? The images were for AVATARS, which presumably are displayed during game-play, both to the players themselves and also to opponents. Of course the actual image is displayed, not some white-noise encrypted equivalent.
  • "The Vigils agreed to have their faces scanned to create digital avatars for NBA 2K15, but said they didn't know their images would be available in unencrypted form online."

    What? How could their images be used in any meaningful way if they aren't visible/available?

    I must be missing something, this sounds like they either don't know what they're talking about OR that they were too dumb to understand that after scanning their faces (!!) their likenesses would be used for display purposes in the game. I mean,

    • by Lehk228 ( 705449 )
      yup, the plaintiffs were fucking stupid. this is very common, that and "the defendant was fucking stupid" are the top two causes of lawsuits in this country

The unfacts, did we have them, are too imprecisely few to warrant our certitude.

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