Video Game Company Wins in Biometric Face-Scanning Dispute

"In your face!"

Often shouted by sports enthusiasts when they score on an opponent, the expression took on new meaning in a recent court decision. The case involved a video game, NBA 2K, that enables users to scan their faces into a computer to create their own avatars in a virtual basketball game.

The end result is that you -- or at least a digital rendering of you -- can slam dunk a basketball and exclaim: "In your face!"

But two players sued, alleging that the gaming company's use of gamers' biometric data violated the law. Unfortunately for two plaintiffs, the litigation game did not end so well. A federal court judge said they had no case against the software company for keeping the biometric data used to create their faces on avatars.

Two Faces

Vanessa and Ricardo Vigil said Take-Two Interactive Software violated the Illinois Biometric Information Privacy Act, which sets forth disclosure, consent, and retention requirements for private entities that collect, store, and disseminate biometric data. As applied to NBA 2K, the judge had to decide whether the plaintiffs had consented to the company's conditions for scanning their visages into the game.

Judge John G. Koeltl walked through the process of biometric scanning in his 51-page decision. In the NBA 2K world, he said that gamers play against virtual basketball players who resemble actual players in the National Basketball Association.

Using the "MyPlayer" function, users can create a three-dimensional avatar of themselves to join in the game. The scanning process takes about 15 minutes, during which gamers must stare at a camera up-close for the scanner to capture their image. After the rendering is done, players can compete with in-game players or third-party players online.

One Ruling

Although the plaintiffs claimed they did not know their images would be stored indefinitely, the judge found that they consented to retention of their biometric data when they signed in for the "MyPlayer" function. He said the allegedly indefinite retention of their data did not pose a real risk under the BIPA.

The plaintiffs argued that their avatar images could be disseminated and fall into the wrong hands, but the judge said their claims were too speculative and dismissed their complaint.

"Ricardo Vigil allegedly bought NBA 2K so that the players could use the MyPlayer for its only alleged purpose, the creation of personalized avatars," the court said in dismissing the case with prejudice.

In other words, game over.

Related Resources:

• Consent to Face Scanning (ContractsProf Blog)
• Cancelling a Contract Doesn't Negate Prior Consent to Receive Text Messages (FindLaw's U.S. Ninth Circuit Blog)
• Merriam-Webster Embraces 'Botnet,' 'NSFW,' and 'Net Neutrality' (FindLaw's Technologist)