• by Wendy Davis  @wendyndavis, August 3, 2015

Shutterfly is asking a federal judge in Illinois to dismiss a lawsuit accusing the company of violating a state privacy law by compiling a database of "faceprints."

"Helping a user re-identify his own friends within his own digital photo album does not violate any law," Shutterfly writes in a dismissal motion filed on Friday with U.S. District Court Judge Charles Norgle in Illinois.

Shutterfly's papers come in response to a lawsuit filed in June by Illinois resident Brian Norberg. He alleged that Shutterfly and its subsidiary ThisLife violated the Illinois biometric privacy law by including his "faceprint" in a database after his photo was uploaded to the service by someone else.

He said in his original complaint that he never gave Shutterfly permission to store the "biometric identifiers or biometric information associated with his face template."

The Illinois Biometric Information Privacy Act, passed in 2008, requires companies to obtain written releases from people before collecting “face geometry,” fingerprints, retinal scans, and other biometric data. That measure also obligates companies that gather biometric data to notify people about the practice, and to publish a schedule for destroying the information.

Shutterfly counters that the Illinois Biometric Information Privacy Act doesn't apply to data gleaned from photographs. "Photographs and any information gleaned from photographs cannot be biometric identifiers," the company argues.

The Illinois privacy law explicitly states that photographs are not considered a biometric identifier. But it also says that "scan of hand or face geometry" meets the definition of biometric identifier.

Shutterfly interprets that language to mean that data about "face geometry" is only regulated when it originates from a "physical, in-person scan" of people's faces.

The company also says that Illinois lawmakers passed the privacy law due to concerns about companies' use of data for security screenings or financial transactions, as opposed to "scans of pixels in a photograph used to help individuals organize their online photo albums."

Facebook also is facing a separate lawsuit for allegedly violating the Illinois law regarding biometric privacy. That matter was recently transferred to federal court in the Northern District of California.

No judges have yet ruled on the arguments that Shutterfly is raising, according to Jay Edelson, who represents the plaintiff suing Facebook.