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Take-Two Interactive Software creates pioneering video games, which incorporates biometric data such as scanning faces. Last Monday a New York federal judge rejected a anticipated class action on how the video game company has accumulated facial scans from personalized virtual basketball players from NBA 1K15 and NBA 2K16. The plaintiff demanded a violation of Illinois Biometric Information Privacy Act which U.S. District Judge John Koetl dismissed the complaint as the players didn’t establish sufficient injury to proceed in the claim.

Illinois new laws have been fashioned to guard against increase consumer privacy concerns with the rising development of digital programs where use of face-scanning technologies and other biometric identifiers are often misused. Other companies such as Facebook, Google, Snapchat and other companies have also faced punitive class actions over similar technologies.

On October 2015 Take-Two has faced criticism of the “MyPlayer” feature of its NBA 2K series where avatars connect to PS4 and Xbox to scan gamer’s face and head in under 20 minutes, where subsequently gamers agree to terms and conditions where face scans will be visible to others. Take-Two allegedly stores the biometric information indefinitely on its servers.

Plaintiffs in the present case claim that the company failed to obtain user’s informed consent as they did not fully understand how their individual biometric information is stored and not having resources to return the game once they did . Even if they could get money back Take-Two failed to inform users in writing that their facial scans are retained and disseminated.

However, the U.S. Supreme court has precedence over this issue in Spoke v Robins that determined that plaintiffs must show injury both “concrete and particularized” in order to have standing to sue. As a result the plaintiff’s attempt to show injury by referencing broad privacy concerns and future harm of biometric-facilitated transactions was not sufficient.

Since there is no allegation that Take-Two has disseminated or sold the plaintiffs’ biometric data to third parties, or that Take-Two has used the plaintiff’s biometric information in any way not contemplated by the only possible use of the MyPlayer feature was to play the game. Thus, the violations of the BIPA are “marginal” and the plaintiffs lack standing to pursue their claims under a simple procedural violation of the BIPA.

Finally, the judge concludes that the plaintiffs failed to establish imminent risk from storage and dissemination. Even though face scans have may cause potential risk the worries are “higly speculative and abstract” and any extensive notice and consent could not have altered the question of standing.

Credit: Jessica Wong


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