Rivera v. Google, Inc.

• Decision Date: 29 December 2018
• Docket Number: No. 16 C 02714,16 C 02714
• Citation: 366 F.Supp.3d 998
• Parties: Lindabeth RIVERA and Joseph Weiss, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. GOOGLE, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

366 F.Supp.3d 998

Lindabeth RIVERA and Joseph Weiss, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs,

v.GOOGLE, INC., Defendant.

No. 16 C 02714

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

Signed December 29, 2018

David P. Milian, Pro Hac Vice, Frank S. Hedin, Pro Hac Vice, Carey Rodriguez Milian Gonya, LLP, Miami, FL, Katrina Carroll, Ismael Tariq Salam, Kyle Alan Shamberg, Lite DePalma Greenberg LLC, Chicago, IL, Theodore Walter Maya, Pro Hac Vice, Bradley K. King, Pro Hac Vice, Robert R. Ahdoot, Pro Hac Vice, Tina Wolfson, Pro Hac Vice, Ahdoot & Wolfson, PC, Los Angeles, CA, for Plaintiffs.

Debra Rae Bernard, Perkins Coie LLP, Chicago, IL, Nicola C. Menaldo, Pro Hac Vice, Ryan Spear, Pro Hac Vice, Susan D. Fahringer, Pro Hac Vice, Perkins Coie LLP, Seattle, WA, Sunita Bali, Pro Hac Vice, Perkins Coie LLP, San Francisco, CA, Frederick Liu, Pro Hac Vice, Neal Kumar Katyal, Pro Hac Vice, Hogan Lovells U.S. LLP, Washington, DC, Sara A. Solow, Pro Hac Vice, Hogan Lovells U.S. LLP, Philadelphia, PA, Thomas P. Schmidt, Pro Hac Vice, Hogan Lovells U.S. LLP, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

Honorable Edmond E. Chang, United States District Judge Under the Illinois Biometric Privacy Act, a private entity cannot collect or store certain kinds of biometric information, including face-geometry scans, without first obtaining consent or providing certain disclosures. 740 ILCS 14/1 et seq. Plaintiffs Lindabeth Rivera and Joseph Weiss both allege that Google unlawfully collected, stored, and exploited their face-geometry scans via Google Photos, a cloud-based service.¹ R. 63, Second Am. Compl. ¶¶ 4-5, 28-30, 33-36, 38-39, 42-45, 57-60, 67-70; see also R. 167, Pl.'s Resp. Br. at 1-3.² Google now moves for summary judgment on all of Plaintiffs' claims against it, arguing that Plaintiffs cannot establish Article III standing; Plaintiffs are not "aggrieved" within the meaning of the Act; and Plaintiffs are not entitled to monetary or injunctive relief under the Act because they have suffered no harm.³ R. 151, Def.'s Mot. Summ. J.

For the reasons discussed below, Plaintiffs have not suffered an injury sufficient to establish Article III standing and their claims are dismissed. Because the Court lacks subject matter jurisdiction over Plaintiffs' claims, the Court need not consider Google's other arguments.

I. Background

In deciding Google's motion for summary judgment, the Court views the evidence in the light most favorable to Plaintiffs, the non-moving parties. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Google Photos is a free, cloud-based service for organizing and sharing photographs. R. 153, Def. SOF ¶ 7; R. 167-1, Pls. Resp. Def. SOF ¶ 10. When a user uploads a photo to Google Photos, Google Photos detects images of faces, then creates a face template, represented by [Redacted ]. Def. SOF ¶¶ 13-15. Google uses these face templates to compare the visual similarity of faces within Google Photos users' private accounts, id. ¶ 15, and then groups photographs with visually similar faces and displays the groups (called "face groups") to the users' private account, id. ¶ 9. Google Photos' face-recognition feature automatically defaults to "on" and is applied to every photo uploaded to the service unless the user opts out. Pls. Resp. Def. SOF ¶¶ 8, 10. The technology also can be applied to photos on the user's phone if "Private Face Clustering" is enabled. Id. ¶ 10. Google Photos users can assign a label (for example a name or title) to any face groups in their private accounts. Def. SOF ¶ 18. These face labels are private to individual users' accounts and are visible only to that user and to Google.⁴ Id. ¶ 20. Google does not use the face templates it creates for anything other than organizing photographs in users' Google Photos accounts.⁵ Id. ¶ 59.

Weiss is a Google Photos user, Def. SOF ¶ 24, and the face-grouping feature in his account was defaulted to "on" until he turned it off sometime in mid-December 2017, Pls. Resp. Def. SOF ¶ 25. There are 53 photographs of Weiss that form the basis of his claim. Def. SOF ¶ 26. At least 16 of them were taken after he filed his complaint on March 4, 2016, but before he turned off the face-grouping feature. Id. ¶ 27. Weiss's Google Photos account, which is associated with his face template, is also associated with his Gmail account. Pls. Resp. Def. SOF ¶ 53. On the other hand, Rivera is not a Google Photos user, Def. SOF ¶ 31, but her friend Blanca Gutierrez is,⁶ id. ¶¶ 32-33. The face-grouping feature was defaulted to "on" in Gutierrez's Google Photos account. Pls.' Resp. Def. SOF ¶ 34. There are at least 27 photos of Rivera taken by Gutierrez and uploaded to Gutierrez's Google Photos account that form the basis for Rivera's claim. Id. ¶¶ 35-36. At least 10 of the photographs of Rivera uploaded to Gutierrez's Google Photos account were taken after Rivera filed her complaint. Def. SOF ¶ 38. Gutierrez labeled a face group in her account as "LindaBeth Rivera." Id. ¶ 44. Apart from Weiss's Gmail account and Gutierrez's labelled face group, Plaintiffs' face templates are not associated with other identifying information, such as their social security numbers or credit card information. Pls. Resp. Def. SOF ¶¶ 53-54. Google did not have permission from Plaintiffs to capture, store, or use face scans of Plaintiffs.⁷ Pls. Statement Add. Facts ¶ 2.

Weiss and Rivera both claim injury to their privacy interests, but testified that they did not suffer any financial, physical, or emotional injury apart from feeling offended by the unauthorized collection. R. 179-1, Def. Resp. Pls. Statement Add. Facts. ¶¶ 3-4. Weiss testified that he would not have given consent to collect his face template if Google had asked him to do so, although he was not sure if he would have stopped using Google Photos altogether. Pls. Resp. Def. SOF ¶ 29. The face templates and face groups associated with Weiss's and Gutierrez's Google Photos accounts are private, and there is no evidence of any unauthorized access into the accounts. Def. SOF ¶¶ 49-50.

II. Standard

Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In evaluating summary judgment motions, courts must view the facts and draw reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The Court may not weigh conflicting evidence or make credibility determinations, Omnicare, Inc. v. UnitedHealth Grp., Inc. , 629 F.3d 697, 704 (7th Cir. 2011), and must consider only evidence that can "be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). The party seeking summary judgment has the initial burden of showing that there is no genuine dispute and that they are entitled to judgment as a matter of law. Carmichael v. Village of Palatine , 605 F.3d 451, 460 (7th Cir. 2010) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Wheeler v. Lawson , 539 F.3d 629, 634 (7th Cir. 2008). If this burden is met, the adverse party must then "set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 256, 106 S.Ct. 2505.

III. Analysis

Google argues that this Court lacks subject matter jurisdiction over this case because Plaintiffs have not shown they have suffered concrete injuries sufficient to satisfy Article III standing, and even if Plaintiffs could establish concrete injuries, those injuries were not caused by Google's conduct. Standing requires that a plaintiff "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citations omitted). Predictably, the parties dispute how the Court should apply the Supreme Court's most recent pronouncement on the injury-in-fact requirement, Spokeo v. Robins , so it is worth examining that opinion before delving into the facts of this case.

A. Spokeo

A plaintiff can, in some instances, satisfy the concrete-injury requirement of Article III absent actual monetary damages. But in those cases, federal courts must carefully ensure that the concrete-injury requirement is still met. In Spokeo , the plaintiff alleged that an online personal-information publisher violated the Fair Credit Reporting Act by publishing inaccurate information about him. 136 S.Ct. at 1546. The website got several things wrong, incorrectly reporting that "he is married, has children, is in his 50's, has a job, is relatively affluent, and holds a graduate degree." Id. But despite these mistakes, the plaintiff did not allege that he suffered any actual monetary harm. Id. at 1546, 1550. Even without that allegation, the Supreme Court reiterated that the concrete-injury requirement can be satisfied even if the injury is not tangible. Id. at 1549. The Court explained, "[a]lthough tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete." Id. (emphasis added).⁸

In determining which intangible injuries are sufficient to confer standing and which are not, Spokeo set out basic principles: a "bare procedural violation" of a statute is not automatically enough to satisfy Article III's concreteness requirement. 136 S.Ct. at 1549. To be sure (and as Plaintiffs here discuss in detail), "[i]n determining...