Court Rejects Microsoft’s Bid to Dismiss Uber Drivers’ Biometric Privacy Case

On Tuesday, the Illinois federal court overseeing the Illinois Biometric Information Privacy Act (BIPA) suit filed against Microsoft allowed the claims to proceed over the defendant’s insistence that the court lacks personal jurisdiction.

The case concerns allegations brought by two Uber drivers. According to their complaint, Microsoft licenses its Face Application Programming Interface (Face API) to Uber, which uses it to verify the identity of Uber drivers. When drivers begin a shift, Uber prompts a driver to take a selfie, which Uber sends to Microsoft alongside its photograph on file. Microsoft’s Face API then returns an answer as to whether the two photographs depict the same person.

The plaintiffs claim Microsoft captures and stores their faceprints without consent in violation of BIPA.

In August, Microsoft moved to dismiss for lack of jurisdiction. The company said that the court lacks personal jurisdiction over it as it is incorporated in and has its principal place of business in the State of Washington. Further, the company said that it does not purposefully target the Illinois market by licensing its application to Uber.

In this week’s opinion, Judge Gary Feinerman said jurisdictional discovery revealed “that Microsoft not only knew that Uber would use the Face API for drivers in Illinois, but that Microsoft modified the API specifically for Illinois drivers.”

The court explained that the licensing agreement Microsoft and Uber negotiated contemplated treatment of drivers in Illinois and Texas, both of which have biometric privacy laws of concern to Uber. For those states, Microsoft was required to purge photographs from its data repository within 48 hours of receiving them. 

“By modifying its business practices specifically with respect to the use of its API in Illinois, Microsoft purposefully directed its business activities to Illinois, availed itself of the forum, and thereby subject ed itself to specific jurisdiction for purposes of this suit,” the court wrote.

Judge Feinerman also rejected arguments that the ruling conflicts with other cases in the circuit. Instead, the court distinguished the cases, noting that here, Microsoft both knew that Uber intended to use the Face API in Illinois and modified the API for that very purpose. 

The plaintiffs are represented by McGuire Law P.C. and Microsoft by Bradley Riley Jacobs PC and Orrick, Herrington & Sutcliffe LLP.