Snapchat Biometrics Privacy Suit Sent to Arbitration

Last Thursday, a Southern District of Illinois judge sent a consumer action to arbitration in a corrected order addressing the user agreement at issue’s arbitrability. The 2019 complaint alleges that Snapchat, a camera application created by defendant Snap Inc. through which users can communicate via short videos and images, uses scans of facial geometry and thereby violates the minor plaintiff’s rights under the Illinois Biometric Information Privacy Act (BIPA).

The opinion explained that after removal to federal court, Snap filed a motion to compel arbitration, among other things. In last week’s order, the court considered “whether a minor is bound by the terms of an arbitration agreement contained in the Terms of Service associated with a mobile application such that issues of validity and enforceability, and the effectiveness of the minor’s disaffirmance, of the agreement should be decided by an arbitrator.”

The 13-year-old plaintiff, an Illinois resident and Snapchat user and account holder, agreed to the terms of service while setting up her account, the complaint states. In her opposition to the motion to compel arbitration, the plaintiff first contested the sufficiency of the delegation provision in the arbitration agreement.

The court sided with Snap, explaining that the terms of service state that the American Arbitration Association’s Consumer Arbitration Rules will govern any arbitration. Their inclusion, the court reasoned, “provides clear and unmistakable evidence of intent to delegate threshold issues of the ‘existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim’ to the arbitrator.”

The plaintiff next argued against the enforceability of all agreements contained in the terms of service, generally. On this question, the court abdicated decision-making responsibility in step with its previous finding. Thus, any question relating to the arbitration agreement’s enforceability, including issues related to plaintiff’s status as a minor and the effectiveness of any disavowal on her part, are the province of the arbitrator, the court held.

The plaintiff is represented by The Driscoll Firm LLC, Milberg Coleman Bryson Phillips Grossman PLLC, Whitfield Bryson LLP, and Greg Coleman Law PC. Snap is represented by Morgan, Lewis & Bockius LLP.