• by Wendy Davis  @wendyndavis, August 24, 2023

Amazon and Starbucks are urging a judge to throw out a lawsuit claiming they violated a New York City law by collecting biometric data from people who visited brick-and-mortar establishments.

The lawsuit -- brought by New York residents Alfredo Rodriguez Perez, Suzanne Mallouk and Arjun Dhawan -- focuses on Amazon's “Just Walk Out” technology, which facilitates cashless check-out at Amazon Go and at two New York City Starbucks that share space with Amazon Go stores..

Rodriguez Perez and the others claim that the company is violating a 2022 city ordinance requiring companies that collect biometric data to post a “clear and conspicuous sign” near the entrance. That law allows consumers to sue for up to $5,000 per violation.

Rodriguez Perez initially sued Amazon in April, in federal court in New York. He withdrew that complaint and -- joined by Mallouk and Dhawan -- re-filed in federal court in Seattle.

Amazon argues in its new motion that the case should be dismissed at an early stage on the grounds that all three plaintiffs consented to the company's use of its cashless technology.

“Amazon expressly disclosed that it would use technology to gather information about their activity before they entered an Amazon Go store,” the company argues in papers filed this week.

Amazon allegedly draws biometric as part of its checkout procedure, which allows customers to make purchases without waiting in line and then handing over cash or a credit card. The cashless “Just Walk Out” system allows people who have registered their palm prints with Amazon One to make purchases by scanning their palms.

Customers who don't register their palm prints can enter the store by either scanning a credit card connected to their Amazon accounts, or using a smartphone app.

The complaint alleges that Amazon -- and the adjoining Starbucks -- collect biometric information on shoppers, including their “size and shape,” regardless of whether they use the company's palm scanner.

"Amazon Go stores constantly collect and use customers’ biometric identifier information, including by scanning the palms of some customers to identify them and by applying computer vision, deep learning algorithms, and sensor fusion that measure the shape and size of each customer’s body to identify all customers, track where they move in the stores, and determine what they have purchased," the complaint alleges.

Rodriguez Perez and the others also contend that Amazon's signage regarding biometric data doesn't comply with New York City's law.

The company's sign “fails to disclose that Amazon converts, retains, and shares biometric identifier information,” the complaint alleges. “Even worse, the sign informs customers that Amazon will not collect biometric identifier information on them unless they use the Amazon One palm scanner to enter the Amazon Go store, even though Amazon Go stores do collect biometric identifier information on every single customer, including information on the size and shape of every customer’s body.”

Rodriguez Perez alleged that he scanned a code from an Amazon app to enter an Amazon Go store, while Mallouk alleged that she used a credit card associated with her Amazon account to enter a Starbucks Pickup + Amazon Go, and Dhawan allegedly placed his palm over a scanner.

Amazon says in its motion that all three agreed to the company's data collection by accepting the terms of service and privacy notices associated with the various Amazon products they used to enter the store.

“Each plaintiff knowingly consented to the very activity upon which they base their complaint,” Amazon writes. “They knew and agreed that their movements would be tracked (or, in Dhawan’s case, his palm signature would be used) and chose to take advantage of the convenience of the Amazon Go stores.”