A lawsuit alleging that the makers of NBA 2k violated Illinois privacy laws with face scans in the game could see another day in court.
The NBA 2k face scan lawsuit that resulted in a win for the game’s makers, Take-Two Interactive Inc., might not be over after all. The plaintiffs haven’t exhausted all options yet.
In January, a New York federal court dismissed the case. The court said that the pursuant of the charges, Roberto and Vanessa Vigil, had no standing to claim harm because a procedural violation does not amount to actual damage. In more plain English, the court stated that while the game may technically violate an Illinois law, the Vigil brother and sister had not actually been hurt in any way.
The suit was originally brought against Take-Two late in 2015. It stated that the game’s “My Player” mode captures and stores detailed scans of game players’ faces without the consent of game players. The Vigils contended that such a procedure is a violation of Illinois’ Biometric Information Privacy Act or BIPA. They sought to certify a class of all Illinois residents who played in that game mode, an injunction bringing the game into Illinois BIPA compliance, and damages of up to $5,000 per violation.
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In their April 11 petition to the 2nd Circuit, the Vigils say that the lower court incorrectly applied precedent, according to Matthew Guarnaccia of Law360.com (paywall). The Vigils contend that they do have standing based on the fact that the scans could identify a person as easily as a fingerprint. Additionally, they argue that if an unsolicited phone call or a receipt showing six digits of a credit card number can substantiate actual harm, then taking and storing a scan of a person’s face should do the same.
The suit has some merit. We don’t know what Take-Two does with all the facial scans it collects or how long it keeps them. The New York federal court did agree that taking and storing them without game players’ written consent was indeed a procedural violation of Illinois’ BIPA. That would be a criminal matter for the state to pursue, however, and thus far it seems the state is uninterested in doing so. That’s probably for the same reason that this civil suit got dismissed.
Unless the Vigils have uncovered new evidence that Take-Two did something untoward with their scans or anyone else’s scans, it’s unlikely that the 2nd Circuit will revive the case. The petition by the Vigils mentions no new such evidence, so this suit is likely dead.