Appeals Court Finds that Plaintiffs Lack Standing in Lawsuit Against Game Developer Over Face Scanning Technology

The Arcade 2.0™: Video Game Law Blog

Braxton Padgett
Tuesday, 19 December 2017

Making a player feel like they are truly immersed in a video game is the winning formula for any developer. In recent years, some developers have taken this notion a step further by integrating face and body scanning technologies into their games, allowing players to insert an avatar of themselves into the game world. Not everyone has been enthused by this novel technology though, as some people have expressed concerns over what developers are doing with the biometric data they’re collecting on players. This was the issue in a lawsuit brought by a brother and sister against developer Take-Two Interactive over the companies use and retention of their biometric data collected from the game NBA 2K15. Fortunately for Take-Two Interactive, last month the Court of Appeals for the Second Circuit affirmed the decision of a U.S. District Court to dismiss the case.

Take-Two Interactive incorporated facial scanning software into their game to allow players to create in-game avatars that resembled themselves.

Take-Two Interactive annually publishes a new version of NBA 2K, a basketball game that lets players take control of their favorite NBA team. In 2014, Take-Two Interactive released NBA 2K15, which, like most NBA 2K releases, introduced new features to the series. One of those features was the ability of users to scan in their face while creating an in-game character. This was done by using a camera attached to the game console, such as the Kinetic camera for Xbox One. The game instructed users to slowly turn their head from side to side while it mapped thousands of reference points on the user’s face. The game then used this data to generate an in-game avatar that resembled the user. This data was also stored on Take-Two Interactive’s own servers. Players who chose to utilize this feature were required to accept terms and conditions regarding the use of the information.

The plaintiffs in the above referenced case, Ricardo and Vanessa Vigil, used NBA 2K15’s face scan feature to create characters in the game. Vanessa initially filed suit with a different individual in October 2015, but later amended her complaint to include her brother instead. The Vigils’ claims were based on violations of the Illinois Biometric Information Privacy Act (“BIPA”), which the state passed in 2008 in response to fears over how biometric identifiers, such as fingerprints, could be misused by companies collecting such data. In order to have standing under BIPA, plaintiffs are required to show that they have been “aggrieved” by a direct violation of the statute. The plaintiffs’ allegations were based solely on Take-Two Interactives failure to comply with various procedural aspects of BIPA, such as providing written notice of its data retention policies.

The plaintiffs failed to show that they had been “aggrieved”, as required to establish standing under the Illinois Biometric Information Privacy Act.

The lower court dismissed the case with prejudice after finding that the plaintiffs failed to present any evidence that Take-Two Interactive had disseminated, misused, or compromised the privacy of the plaintiffs’ biometric information. Rather, the biometric information was used for the exact purpose that the plaintiffs had anticipated: the creation of in-game avatars. The Vigils attempted to revive their lawsuit by appealing to the U.S. Court of Appeals for the Second Circuit. Take-Two Interactive argued that the plaintiffs would only have standing to sue if their biometric information been compromised from a data breach, which was not the case. The court declined to rule on this particular point, but did agree that the Vigils had not shown how they had been aggrieved as required to establish standing under BIPA. The plaintiffs did, however, win a minor victory. The appeals court found that it was improper for the lower court to dismiss the case with prejudice. The plaintiffs will have the chance to file an amended complaint, though they will likely face the same challenges in establishing standing.

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