Microsoft Facing Biometric Privacy Class Action in Illinois Over Brainshark Facial Scans

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A proposed class action alleges Microsoft has unlawfully captured and stored without consent the biometric information of customers of Brainshark, a client of the corporation’s Azure artificial intelligence services.

According to the 24-page lawsuit, Brainshark employs Microsoft’s cloud-based Azure Cognitive Services (ACS) for video-based sales coaching that analyzes the facial expressions of users who upload videos of themselves to Brainshark’s platform. The suit claims that Microsoft has violated the Illinois Biometric Information Privacy Act (BIPA) by failing to obtain consent before collecting and storing Brainshark users’ biometric data through ACS, and by neglecting to disclose the length and purpose for which the information would be kept and when it would be destroyed.

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To use Brainshark’s coaching service, a user records and uploads a video of a sales pitch or presentation to the platform and then receives feedback via machine learning technology, which tracks the speaker’s facial expressions and body language to automatically generate a personalized analysis, the case explains.

The analysis of a Brainshark user’s facial expressions—that is, their unique facial geometry, considered a biometric identifier under the BIPA—is driven by Microsoft’s ACS platform, meaning that the defendant, by way of Brainshark’s services, allegedly captures and stores users’ biometric data without their knowledge or consent.

What’s more, because ACS is used by other clients besides Brainshark, Microsoft has likely collected, stored, and used the biometric information of consumers far beyond those of only the sales software company, the filing argues.

The biometric information of the Chicago-based plaintiff was purportedly obtained by Microsoft when he used Brainshark’s video-based coaching service around August 2020, the lawsuit says. At no point was the man informed of, or asked to consent to, Microsoft’s alleged collection and storage of his biometric data, nor was the plaintiff provided details on why or for how long the defendant would keep his information and if it would be destroyed, the case contends.

The defendant’s reportedly unlawful practices are cause for concern, the complaint asserts. If Microsoft’s database “[fell] into the wrong hands, by data breach or otherwise, the individuals to whom these sensitive and immutable biometric identifiers and biometric information belong could have their identities stolen, among other serious issues,” the filing stresses.

The lawsuit looks to represent anyone residing in Illinois whose biometric data was obtained, stored, used, or disseminated by Microsoft through the use of products and/or services that employed Azure and/or Azure Cognitive Services.

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