Publisher 2K Games emerged victorious in a court case involving the permanent storage of scanned player faces and biometric data in its NBA 2K series, ending a lawsuit that emerged in October 2015.
The lawsuit alleged a violation of the Illinois Biometric Information Privacy Act of 2008. After more than a year’s worth of deliberation and courtroom debate, U.S. District Judge John Koetl dismissed the case, noting that “The allegations are insufficient for standing because they do not establish that the plaintiffs suffered any actual or imminent harm as a result of Take-Two’s advertising practices.”
2K’s annual basketball sim franchise first introduced a face-scanning feature in NBA 2K15, allowing players to map their physical likeness to a custom-created player. Players with imported faces can be used across multiple game modes, including online multiplayer matches.
After purchasing NBA 2K15, Illinois resident Ricardo Vigil was surprised to learn that both his and his sister’s physical likenesses were being shared online through multiplayer matches involving characters with scanned faces. Vigil afterward filed a lawsuit against 2K Games, claiming that parent company Take-Two “did not publicly provide a retention schedule or guidelines for permanently destroying biometric identifiers” and “failed to inform the plaintiffs properly in writing that their biometric identifiers would be collected, and failed to explain the purpose and length of that collection,” among other allegations.
Take-Two later filed a motion to dismiss the case, which Koeltl granted in a subsequent opinion and order. Koeltl cited the 2015 case Spokeo v. Robins in his order, which found that plaintiffs must provide “concrete and particularized” and “actual or imminent, not conjectural or hypothetical” evidence of injury in cases involving online presence and privacy.
“The Court has considered all of the arguments raised by the parties,” Koeltl wrote. “To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, Take-Two’s motion to dismiss the Second Amended Complaint is granted and the Second Amended Complaint is dismissed with prejudice.”