Illinois residents Steven Vance and Tim Janecyk uploaded images of themselves to the photo-sharing website Flickr in the mid-2000s. Without their knowledge, IBM included their faces in a data set of 1 million images, called Diversity in Faces, intended to help train facial-recognition algorithms to better distinguish between people of color — something facial recognition tools are notoriously bad at doing. A string of incidents in which facial recognition algorithms resulted in wrongful arrests have generated allegations that the software's implicit racial bias violates civil rights.
Microsoft and Amazon both used the Diversity in Faces data set to improve the accuracy of their facial recognition software. In doing so, the companies violated a 2008 Illinois statute, the Biometric Information Privacy Act ( BIPA), prohibiting companies from profiting off individuals' biometric data, Vance and Janecyk contended in their suit, which is seeking class-action status. The plaintiffs also lodged a complaint of unjust enrichment against the firms, arguing that Amazon and Microsoft did not obtain their consent to use their images to develop software.
A Seattle federal district judge ruled Wednesday that the cases can go forward over the two tech giants' objections. Both claims against Seattle-based Amazon can proceed, Judge James Robart decreed. Robart struck down the plaintiffs' BIPA complaint against Redmond-headquartered Microsoft, leaving only the unjust enrichment claim.
Amazon and Microsoft did not immediately respond to questions about the allegations in the lawsuits. The two companies, which in the cloud-computing sector are battling for market share and lucrative government contracts, are cooperating — at least for now — against Vance and Janecyk's suits. Given Robart's dismissal of one of the plaintiffs' claims against Microsoft, it seems likely the companies' defenses will diverge as the cases proceed.
It's not just Amazon and Microsoft that are facing heat for how they trained their facial recognition software. Vance and Janecyk have filed the same complaint against Google in California. That case has been postponed until the conclusion of another BIPA case the two brought, against IBM, which is in a fact-finding phase.
Facebook settled a 2015 class-action lawsuit over BIPA for $550 million last year. Snapchat and Shutterfly have faced similar suits.
Amazon's facial recognition software, Rekognition, has become a particular focus of criticism by civil-liberties advocates. Amazon is the largest provider of facial recognition technology to U.S. law enforcement, including federal immigration agencies and the FBI.
Last summer, as protests over the police killing of George Floyd shook the country, Amazon Web Services CEO Andy Jassy put a one-year moratorium on the sale and use of Rekognition by law enforcement. He later tweeted, "If you don't hold police depts accountable for murdering black people, we will never have justice and change, or be the country we aspire (and claim) to be."
Microsoft President Brad Smith also pledged not to sell the company's facial recognition software to police until the technology is regulated at the federal level.
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