The British Columbia Court of Appeal says Yeremia Situmorang, who filed a civil claim alleging pictures of his children taken on his Android phone were automatically uploaded to Google Photos without his consent, can go back to the B.C. Supreme Court to try and certify his class action suit against the tech giant for the non-consensual collection of face biometrics.
A court document states Situmorang’s argument that “facial biometric data is intrinsically sensitive personal information, akin to an individual’s DNA or fingerprints,” and that collecting said data without consent constitutes a violation of privacy.
Situmorang’s action is on behalf of anyone who had facial biometric identifiers extracted and collected via Google Photos – both users and non-users of the cloud-based image storing platform.
Google’s strategy in responding to the suit has focused on the process by which collected photos are organized. A statement from the company says that it is not employing facial recognition, but merely using an algorithm to identify similar faces and create templates via its “face grouping” function, which can be opted out of at any time. The feature identifies biometric face data in images and algorithmically groups similar faces into photo collections.
In November 2022, a chambers judge bought Google’s argument, ruling that Situmorang’s allegations failed to prove unlawful conduct and that most people would not consider the “face grouping” of biometric data to be a grave offense. But the B.C. Court of Appeal says that whatever happens to the biometric data after collection is beside the point, since Situmorang’s claim focuses on the act of collection itself.
“Whether the facial biometric data collected from class members was used, exclusively or otherwise, for the purpose of the face grouping function is, as the appellant argues, largely irrelevant to the viability of the pleaded causes of action,” says the decision from Justice Karen Horsman. “Situmorang pleads that each class member has a right to control their own facial biometric identifiers, and that control was not ceded by the act of uploading a photograph.”
The company also faces a similar lawsuit in Texas.
Expect the issue of consent to vie with deepfakes as one of the top biometrics issues of 2024.