On Monday, October 19, 2015, two Illinois residents filed a proposed class action lawsuit against Take-Two, a video game publisher, developer, and distributor, alleging violation of privacy rights.
The video games in question are Take-Two’s NBA 2K15 and NBA 2K16 for PlayStation 4 and Xbox One gaming platforms. According to the complaint, Take-Two integrates PS4’s camera and Xbox’s Kinect camera into the games, allowing users to create NBA players with a “personally identifying facial rendition.” The plaintiffs argue that this feature constitutes illegal collection of “biometric identifiers” and “biometric information.”
In regard to information technology, “biometrics” refers to technologies that measure and analyze unique physical characteristics in order to identify individuals. Traditional examples include fingerprints, eye scans, face scans, and handwriting. Investments into new technological advances are pushing biometrics into new territories, however, such as gait-recognition, electrocardiogram wristbands, and even body odor scans.
The recent developments in biometric technologies have caught the attention of lawmakers, as concerns over privacy rights regularly shroud developments in information technology. In 2008, Illinois passed the Biometric Information Privacy Act (BIPA), which makes it unlawful for private entities to collect a person’s biometric identifier/information unless it first obtains informed written consent.
The plaintiffs allege, according to their complaint, that the scanning feature used by Take-Two extracts “unique points and contours of each face,” which constitutes “biometric identifiers.” Thus, the plaintiffs argue, Take-Two is “collecting, storing, disclosing, and disseminating” biometric information without informed written consent in violation of BIPA, and will result in increased risk of identity theft for the plaintiffs.