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Texas AG Paxton Sues Google over Biometric Data Collection

Communications Litigation Today

A lawsuit against Google by Texas Attorney General Ken Paxton (R) over the company’s use of biometric data in photo apps and devices could lead to a massive payout based on recent large settlements in similar cases against Google and Facebook under Illinois’ Biometric Information Privacy Act (BIPA), attorneys told us Thursday. “All across the state, everyday Texans have become unwitting cash cows being milked by Google for profits,” said the complaint, filed Thursday in the state's District Court of Midland County.

The lawsuit appears similar to Paxton’s February case against Meta, which is still proceeding in District Court of Harris County. Google settled a BIPA case for $100 million in September, and Facebook paid out a $650 million BIPA settlement in February 2021, but the Texas law under which Paxton has sued allows for statutory damages five times that of BIPA. While there have been numerous BIPA cases, the 2009 Texas law underpinning Paxton’s suit -- the Capture or Use of Biometric Identifier Act (CUBI) -- is largely untested, said attorney Jeffrey Rosenthal of Blank Rome. “Texas is the Wild West; we don’t know what’s going to happen,” Rosenthal said.


The complaint seeks an injunction against further CUBI violations and the statutory damages allowed under the act: $25,000 per violation. Illinois’ BIPA law assesses up to $5,000 per BIPA violation. Last week, the first jury verdict in a BIPA case found BNSF Railway liable for 45,600 violations of the law -- $228 million -- one violation for each driver whose fingerprints BNSF scanned and collected. These statutes are taken “very seriously” by companies facing such lawsuits because of the danger of large payouts, said Rosenthal, who represents BIPA defendants.


It’s not clear what tack Google would take to defend the case, but in the BIPA case Rivera v. Google, the tech company argued that photos aren’t biometric data under BIPA and that users had consented, though it eventually settled. Most state biometric privacy laws were written to facilitate the use of biometric data rather than prevent it, and allow expansive data collection with consent, said Rosenthal.

Unlike in Illinois, the Texas law doesn’t allow private action, so it’s unlikely to spawn a host of filings the way BIPA or the TCPA have, attorneys told us. But if Paxton is successful in the CUBI challenges against Meta and Google, it’s likely to encourage further biometric privacy cases in other states, Rosenthal and Stiehl said.

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"Texas AG Paxton Sues Google over Biometric Data Collection," by Monty Tayloe was published in Communications Litigation Today on October 21, 2022.