Jan. 13--Brian Norberg says he never signed up to use Shutterfly's online scrapbook service.
But that didn't stop the company's computer algorithms from identifying his face in photos that other people uploaded, he says.
So Norberg sued Shutterfly.
Now, in a ruling that could have implications for Facebook and other companies that use facial recognition software, a federal judge says Norberg's class-action lawsuit can go ahead.
Ruling against Shutterfly's attempts to have the case tossed out on Dec. 29, U.S. District Judge Charles Norgle found that Norberg had "plausibly stated a claim" under the Illinois Biometric Information Privacy Act (BIPA).
Norberg's suit, filed in June, alleges that his face ended up in Shutterfly's database after a friend uploaded and tagged a photo of him in February 2015. Shutterfly measured the contours of his face and the distance between his eyes, nose and ears to create a template it used to suggest other photos of Norberg be tagged with his name, the suit alleges.
The company also attempted to determine Norberg's race, age and location without trying to get his consent, the suit alleges.
But California-based Shutterfly has argued that "Helping a user re-identify his own friends within his own digital photo album does not violate any law."
Photographs are explicitly excluded from BIPA, which legislates only "information obtained from an in-person, physical scan of a person's actual eye, finger, voice, or face," Shutterfly argued in its attempt to have the suit tossed.
The judge wrote that the 2008 law has not yet been interpreted by the courts, meaning Norberg can proceed with his case.
Kyle Alan Shamberg, an attorney for Norberg, said the class Norberg represents includes every Illinois resident who had their photo uploaded and tagged on Shutterfly without joining the service. It's not yet clear how many people that would be but is likely "thousands, at a minimum," he said. Under BIPA, each photo uploaded of a class member could generate a fine of up to $5,000, plus fees, he said.
A similar case brought by another Cook County resident, Carlo Licata, is pending against Facebook in California.
Attorneys for Shutterfly did not immediately respond to requests for comment.
kjanssen@tribpub.com
