## Facts

- Illinois residents Steven Vance and Tim Janecyk uploaded photographs of themselves to Flickr while in Illinois.
- A large dataset of publicly posted Flickr photos was compiled and made publicly available for facial-recognition research without users’ alleged knowledge.
- IBM created the “Diversity in Faces” dataset by selecting about one million images and generating facial measurements and related attributes from the photos.
- Plaintiffs alleged their photos were included in the IBM dataset and that the dataset contained their biometric identifiers or information (facial geometry derived from images).
- Plaintiffs alleged Amazon obtained the dataset and used the images and facial measurements to develop, test, and improve its facial-recognition product, Amazon Rekognition.
- Plaintiffs alleged Amazon commercialized Rekognition by incorporating it into Amazon products and marketing it to third parties, including law enforcement.
- Plaintiffs sued in federal court as a putative class action, asserting BIPA claims and unjust enrichment; Amazon moved to dismiss under Rule 12(b)(6).
- The reported order resolved the remaining motion-to-dismiss issues concerning BIPA § 15(c) (“otherwise profit from”) and choice of law for unjust enrichment.

## Issues

1. Whether allegations that Amazon used plaintiffs’ biometric data to develop and commercialize Rekognition plausibly stated a claim that Amazon “otherwise profit[ed] from” biometric identifiers or information under BIPA § 15(c).
2. Whether Illinois or Washington law governed the unjust-enrichment claim, and whether unjust enrichment was sufficiently pleaded (including as an alternative to statutory claims).

## Decision

- The court denied the remaining portions of Amazon’s Rule 12(b)(6) motion to dismiss.
- The court held plaintiffs plausibly alleged a BIPA § 15(c) violation because “otherwise profit from” can include using biometric data to create or improve products that are then sold or monetized, even without selling or transferring the biometric data itself.
- Applying Washington choice-of-law rules, the court determined Illinois law governed unjust enrichment given plaintiffs’ Illinois residency and alleged Illinois-centered injury.
- The court held the complaint plausibly alleged unjust enrichment under Illinois law and allowed the claim to proceed as an alternative theory at the pleading stage.

## Legal Principles

- BIPA § 15(c)’s phrase “otherwise profit from” is not limited to transactions involving sale, lease, trade, or direct transfer of biometric data; it can include profiting through internal use of biometric data to develop and commercialize products.
- At the motion-to-dismiss stage, allegations that a defendant obtained biometric data, used it to improve a commercial product, and derived revenue from that product can state a plausible § 15(c) claim.
- Under Washington conflicts principles, Illinois law may apply to related common-law claims where plaintiffs are Illinois residents and the alleged injury and underlying conduct are closely connected to Illinois and Illinois statutory policy.
- Under Illinois law, unjust enrichment may be pleaded where a defendant allegedly retained benefits obtained through unlawful or wrongful conduct, and it may be asserted in the alternative to statutory remedies at the pleading stage.

## Conclusion

The court allowed plaintiffs to proceed past the pleading stage on a BIPA § 15(c) theory that profiting includes monetizing products developed with biometric data, and it applied Illinois law to permit an alternative unjust-enrichment claim based on the same alleged conduct.


Vance v. Amazon.com, Inc., 534 F. Supp. 3d 1314 (W.D. Wash. 2021)