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Washington, D.C. - U.S. Magistrate Judge Michelle L. Peterson has recommended that a suit alleging Amazon.com Inc. collected facial scans of teens playing NBA 2K without proper disclosures or consent should proceed. The suit, brought by Illinois resident Dominic Mayhall, claims Amazon and its subsidiary Amazon Web Services Inc. (AWS) violated the Illinois Biometric Information Privacy Act (BIPA).

Judge Peterson advised U.S. District Judge Tana Lin to deny Amazon’s motion to dismiss the case, stating that Mayhall sufficiently alleged Amazon knowingly obtained and disseminated biometric data without the required consent. According to the magistrate judge, Mayhall’s amended complaint contends that Amazon collected and shared facial scans from NBA 2K players with third-party gaming platforms, violating BIPA.

Denial of Amazon’s Motion to Dismiss Biometric Privacy Suit

Amazon has argued its immunity under the U.S. Communications Decency Act, claiming it acted merely as a passive cloud services provider for Take-Two Interactive Software Inc. and 2K Games Inc., the makers of NBA 2K. However, Judge Peterson’s recommendation emphasized that Amazon’s customer agreements and policies suggest it maintains some control over the data stored on its servers, challenging the company's defense.

Judge Peterson noted that Amazon could not refute the amended complaint’s allegations by referencing its customer agreements. The court must assume the complaint’s factual allegations are true at this stage and draw reasonable inferences in the plaintiff’s favor.

Mayhall’s complaint alleges that AWS collected and stored players’ biometric data, used to generate avatars for NBA 2K players, without proper disclosure or consent. The amended complaint further asserts that Amazon actively obtained and disseminated this biometric data without informing users, retaining the data even after gameplay ended.

The judge also recommended rejecting Amazon’s claim to immunity under the Communications Decency Act, clarifying that the complaint addresses Amazon’s failure to comply with BIPA, which imposes duties to disclose and obtain consent before collecting or using biometric information.

Mayhall is represented by Jason T. Dennett and Cecily C. Jordan of Tousley Brain Stephens PLLC, Kevin P. Green of Goldenberg Heller & Antognoli PC, and Christian G. Montroy of Montroy Law Offices LLC. Amazon and AWS are represented by Brian D. Buckley of Fenwick & West LLP and Elizabeth B. Herrington of Morgan Lewis & Bockius LLP.

The case is Dominic Mayhall et al. v. Amazon Web Services Inc. et al., case number 2:21-cv-01473, in the U.S. District Court for the Western District of Washington.