The developers of two NBA video games were successful this week in getting a putative class action alleging violations of the Illinois Biometrics law dismissed.

Two named plaintiffs alleged that the video games violated the Illinois Biometrics Information Privacy Act (BIPA) because the game developer failed to get the gamers’ permission prior to using and storing their facial features and disclosed the likeness of them to other players. The games use technology to capture 3D scans of their faces in order to make avatars of the gamers while playing against other users.

The Judge disagreed that the game developers violated BIPA and dismissed the case, stating that the use of the images to create avatars was not a violation of the statute and further, that there is no evidence that the developers were using the images for anything else, nor was there any evidence that they disseminated the information. Therefore, the plaintiffs were unable to show a concrete injury and had no standing to sue. The players say they will appeal the decision.

We will continue to watch the development of case law around biometrics and the Illinois statute.

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