Online Jewelry Site Violates BIPA Via Virtual Try-On, Says Complaint
Brilliant Earth jewelry company’s virtual try-on feature collects detailed and sensitive biometric identifiers, including complete hand geometry scans, without disclosing they're being collected, alleged a Friday privacy class action (docket 1:23-cv-987) in U.S. District Court for Northern Illinois in Chicago.
Plaintiff Tanisha Roberson of Lansing, Illinois, used the company’s virtual try-on feature about 100 times in 2022 via the Chrome browser on her Android smartphone to see how various engagement rings would look on her hand, said the complaint. She didn’t set up an account on the website or buy a product from Brilliant Earth.
When Roberson used the virtual try-on feature, Brilliant Earth captured her hand geometry data; the feature could not have provided the advertised experience if it didn't capture and collect her hand geometry, the complaint said. The San Francisco-based jewelry company had a privacy policy, but it didn’t inform Roberson how her hand geometry, a biometric identifier protected by the Biometric Information Privacy Act (BIPA), would be collected, used or retained to allow the virtual try-on feature to operate, said the complaint.
Brilliant Earth also doesn’t have a publicly available written policy establishing a retention schedule and guidelines for permanently destroying biometric identifiers obtained from consumers, as required by BIPA, and Roberson doesn’t know if the company will ever permanently delete her biometric data, it said. BIPA requires an entity in possession of biometric identifiers to permanently destroy the information within three years of when the initial purpose of collecting the information took place, or within three years of the individual’s last interaction with the entity, the complaint noted.
The plaintiff and class seek liquidated damages of $1,000 per negligent violation, $5,000 per willful or reckless violation, or actual damages, said the complaint, plus reasonable attorneys’ fees and legal costs. It also seeks to enjoin Brilliant Earth from further collection of biometric identifiers without written release and a requirement that it develop a written policy governing retention and deletion of biometric information.