Microsoft Photos App Collects Illinois Residents’ Biometric Facial Scans Without Consent, Class Action Says

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A proposed class action in Illinois alleges Microsoft has failed to obtain informed consent before collecting consumers’ facial scans through the Photos app in Windows 10 and 11. 

The 13-page lawsuit alleges the tech giant has run afoul of the Illinois Biometric Information Privacy Act (BIPA), a state law designed to govern the collection, storage, use and disclosure of residents’ facial scans, fingerprints, voiceprints, retinal images and other sensitive data by private entities. 

In particular, the case says Microsoft’s Photos app in Windows 10 and 11 uses facial recognition technology to automatically identify images that feature people and determine certain characteristics, such as facial expressions. Moreover, the Photos app is able to automatically recognize a person’s facial characteristics and find and group together all images in which that particular person appears, the lawsuit states. 

The complaint alleges, however, that Microsoft has failed to comply with the Illinois BIPA. The privacy law, the suit says, requires a private entity who deals in biometrics to first inform a consumer in writing that their biometric identifiers or biometric information will be stored or collected. Private entities are also required by law in Illinois to inform a consumer, in writing, of the specific purpose and length of time for which their biometrics are being collected, stored and used, the case states. 

Further, the BIPA also requires a company to receive a written release allowing it to capture and collect a consumer’s biometric identifiers and publish a publicly available retention policy for destroying the data when its use has been satisfied or within three years of a person’s last interaction with the company, according to the filing. 

Per the case, the Photos app, by default, has “facial grouping technology” turned off until it is turned on by the user. Despite this, however, the app is always performing facial recognition, purportedly to help Photos “know where there is a face in a photo or video so that the app can further analyze the photo,” the suit states. 

Specifically, Microsoft’s Photos app automatically scans each image to which it has access and uses facial recognition technology to identify what people are doing in the image and then automatically suggests tags, such as “smile,” that will bring up all pictures in the app that include people engaged in the same action, (e.g., smiling), the lawsuit relays. 

“Critically, Defendant’s Photos application automatically performs facial recognition of hundreds of thousands of individuals, including Illinois residents, without obtaining their written consent as required by the BIPA to collect their facial biometrics, including from Plaintiff and other Class members,” the suit claims. 

The case looks to cover all individuals whose facial biometric identifiers or biometric information was collected, stored, captured, transmitted, disseminated or otherwise used by Microsoft within Illinois at any time within the applicable statute of limitations period. 

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