Court Sends Amazon Alexa BIPA Plaintiffs to Arbitration

Consumers who sued Amazon must now arbitrate claims that the company’s Alexa device, a digital assistant, illegally recorded their voices and stored their voiceprints in violation of the Illinois Biometric Information Privacy Act (BIPA). In its Feb. 5 opinion, the court ruled on the parties’ dueling motions. It denied the plaintiffs’ request for remand to state court after agreeing with Amazon that the plaintiffs had Article III standing. As to two of the three named plaintiffs, the court granted Amazon’s motion to compel arbitration.

The 2019 complaint alleged that Amazon’s voice-based virtual assistant Alexa, “listens to users, records users’ voices, and responds to the users’ voice commands using speech and voice recognition technology.” Reportedly, Amazon neither informs users in writing that Alexa is recording their unique voiceprint, nor does Amazon inform bystanders—people who speak in the vicinity of Alexa but do not own Alexa devices or have Alexa accounts—that the device is collecting their biometric information. The consumers brought two BIPA claims, one for Amazon’s failure to notify, and one for its failure to maintain a publicly available “retention schedule or guidelines” for permanently destroying biometrics.

The court’s opinion explained that since 2011, Amazon’s Conditions of Use (COUs), to which users must agree to before using Amazon services or Alexa, have included an arbitration agreement with a class action waiver provision. Users must also agree to the Alexa Terms of Use (TOUs) which too contain an arbitration provision.

The Northern District of Illinois court found that the plaintiffs had standing and enforced Amazon’s arbitration agreements as to the two adult plaintiffs who had agreed to those terms. As to the third named plaintiff, “E.G.,” a minor, the court ruled that it could not decide Amazon’s motion to compel without further briefing.

The court explained that it had “…no basis for applying provisions of the COUs and TOUs without first deciding whether non-signatory E.G. has any rights under those contracts.” The parties, it concluded, had neither briefed choice of law issues nor the application of equitable estoppel under the law of the resulting state adequately. Thus, the court denied the motion to compel without prejudice and directed the litigants to submit supplemental briefing.

The plaintiffs are represented by Taxman, Pollock, Murray & Bekkerman, LLC and KamberLaw LLC. Amazon is represented by Morgan, Lewis & Bockius LLP.