An appellate court has largely sided with Take-Two Interactive Software in a battle over whether the company violated an Illinois privacy law by collecting faceprints of video game players.
The 2nd Circuit Court of Appeals this week upheld a trial judge’s decision to dismiss a class-action complaint filed by siblings Vanessa and Ricardo Vigil over the game NBA2K15. The Vigils alleged that gaming platform improperly scanned their faces in order to create avatars that represented them in the game. They said the violated the Illinois Biometric Information Privacy Act — a 2008 law requiring companies to obtain written releases from people before collecting faceprints and other biometric data.
A three-judge panel of the appeals court ruled that the Vigils couldn’t proceed with the case because they consented to the scans.
“Plaintiffs had to place their faces within 6 to 12 inches of the camera, slowly turn their heads to the left and to the right, and do so for approximately 15 minutes,” the judges wrote. “This degree of invasiveness far exceeded that of a simple photo.”
The Vigils alleged that the game didn’t follow all of the requirements of the Illinois statute, including obtaining their written consent, or providing them with a data retention schedule.
But the appellate judges wrote that those alleged procedural violations of the statute didn’t warrant a federal lawsuit.
The ruling wasn’t a complete victory for Take-Two. The appellate court ruled that the dismissal should be “without prejudice,” which leaves open the possibility that the Vigils will be able to revise their allegations and bring suit again.