Why Hollywood Should Pay Attention to Biometric Privacy

Brimstone Facial Capture - H 2014
Courtesy of Digital Domain

Brimstone Facial Capture - H 2014

In entertainment, the fame of one's face is valuable. So much so that one Israeli company offers an app called Skakash that allows its users to point an iPhone camera at a television to reveal the name of the celebrity on the screen. Elsewhere, insurance companies take body scans of actors just in case they die in the middle of production. There's even a prediction out there that one day, film studios could forgo the cost of hiring A-list actors and "license the rights to their scanned faces and paste that data onto a digital puppet animated by the movements of another actor."

But as the entertainment industry moves into the next frontier, how might biometric privacy factor?

On Wednesday, a tech company that's famous for letting its users send messages that vanish quickly was sued for storing biometric data. The defendant is Snapchat, and according to a proposed class action (read here), the company is violating the Illinois Biometric Information Privacy Act by collecting tens if not hundreds of millions of “face templates” so that users can add special effects to their selfies using the "Lenses" feature.

The Illinois law was enacted in 2008 upon the appearance of finger-scan technologies at grocery stores, gas stations and school cafeterias. There was growing concern of how biometric identifiers could be misused. In the past year, though, this statute has captured the attention of class-action attorneys. Much like the spate of lawsuits targeting entertainment companies over the Video Privacy Protection Act, there have been a growing number of class actions over biometric privacy. And they are proving a nuisance for defendants. In April, Shutterfly settled a lawsuit after a judge refused to accept its argument that the Illinois law's exemption on photographs left it immune from claims.  Two weeks ago, a judge rejected Facebook's argument that its terms of service meant that it was only bound by California and federal laws. Google is also facing a biometric suit.

And it's not just tech companies. The Illinois law has already hit the outer reaches of the entertainment industry.

Last October, video game maker Take-Two Interactive was hit with a putative class action over its NBA 2K15 and NBA 2K16 games. It's alleged in the complaint that Take-Two had failed to obtain informed consent from those using PS4 and Xbox cameras to scan their facial geometry to create personable basketball player avatars. The case is being litigated in New York thanks to a forum clause in the user agreement, but that's not stopping the judge from examining whether Take-Two is violating Illinois' biometric statute by collecting and storing face scans.

Interestingly, a ruling last week by the U.S. Supreme Court could impact these lawsuits. In Spokeo v. Robins, the high court ruled that to have standing, plaintiffs must show an injury that is both “concrete and particularized.” In other words, merely showing a company is storing biometric data might not be enough. There's got to be concrete harm, whatever that means. The Supreme Court kicked it back to a lower appeals court to examine. Just a day after it did so, Take-Two told its judge about the Spokeo development. Take-Two has a pending motion (read here) that's premised on the argument that because there's no allegation that NBA 2K16 users have been "aggrieved" by biometric collection, the lawsuit should be dismissed. 

How actors and actresses might use the statute to protect against, say, Google Glass users identifying them in public through a facial recognition app is anyone's guess. And while it might be premature to say that studios could get in trouble for scanning actors during production, it's certainly bears watching. Says tech attorney Venkat Balasubramani, "Entertainment companies that deal with likeness should definitely be aware of this."