Illinois smartphone users sue Motorola Mobility over alleged selfie privacy violations

The complaint, filed Monday in Cook County Circuit Court, alleges Motorola Mobility “brazenly breached” its own arbitration provision by refusing to pay a $7.2 million filing fee in a mass arbitration claim brought in February.

The arbitration action alleges Motorola violated the Illinois Biometric Information Privacy Act by “surreptitiously” collecting personal data from users’ selfie photos without permission. Motorola sells Moto, Razr and Edge devices with “high-powered cameras” that use facial recognition and artificial intelligence to identify and store the selfie image, according to the complaint.

A Motorola Mobility spokesperson did not respond to a request for comment Wednesday.

Motorola, a cellphone pioneer that once dominated the market, split into two companies in 2011.

Motorola Solutions, which supplies public safety communications devices, relocated its corporate headquarters from Schaumburg to Chicago’s West Loop neighborhood in 2016.

The cellphone manufacturing business, renamed Motorola Mobility, was purchased by Google for $12.5 billion in 2012. Lenovo acquired Motorola Mobility from Google for $2.91 billion in 2014, relocating the company from north suburban Libertyville to the Merchandise Mart in Chicago.

Motorola Mobility has a mandatory arbitration provision in its terms of service that prohibits class-action lawsuits to resolve customer disputes. But when the petitioners filed the arbitration claims en masse with Judicial Arbitration and Mediation Services, as directed by Motorola, the company balked, the lawsuit alleges.

The 4,130 petitioners paid more than $1 million in filing fees Feb. 6, according to the complaint. Within days, the arbitration service billed Motorola more than $7.2 million for its portion of the filing fees. On March 14, Motorola paid the filing fee for one petitioner who lived in California, where the state imposes sanctions in the event of nonpayment for arbitration cases.

But Motorola refused to pay the rest of the filing fee, the lawsuit alleges, claiming the arbitration action was barred by Google’s $100 million biometric privacy class-action settlement, which was approved in September 2022. More than 687,000 Illinois residents who filed claims in the settlement were in line to receive payouts of about $95 each in July.

Motorola smartphones use the Google Android platform, but the arbitration action is focused on the camera features and the company’s own photo gallery app preinstalled on the devices.

The Motorola users disputed the company’s Google argument, and the arbitrator ruled March 30 that Motorola owed the $7.2 million. But the company refused to write the check and the case was closed May 23 for “lack of filing fee payment,” according to court filings.

Melissa Nafash, a New York-based attorney whose firm, Labaton Sucharow, organized the mass arbitration and filed the federal lawsuit against Motorola, said she believes the company is trying to avoid having the privacy case decided on its merits in any venue.

“The arbitration provision, the way that companies sold it in the beginning, was that their terms were consumer friendly and this was a quick, easy way to have the claim heard and avoid the time required in litigated class action,” Nafash said Wednesday. “What they really did that for was to never have the claims heard.”

The Motorola lawsuit follows a similar privacy action organized by Labaton Sucharow against Samsung.

In September, a Chicago federal judge ruled Samsung must pay more than $4 million in filing fees to begin a mass arbitration case brought by 50,000 petitioners alleging their Galaxy devices violated the biometric privacy law by using facial recognition technology without consent.

Filed last year with the American Arbitration Association, the petitioners paid more than $2 million in initial filing fees, but Samsung refused to pay its share, according to the lawsuit.

The state’s biometric privacy act, which was passed in 2008, is considered the strictest in the U.S. and requires companies to get permission before using technologies such as facial recognition and fingerprint scans to identify customers or employees.

The law allows for $5,000 per person in damages for “intentional or reckless” violations and $1,000 for “negligent” violations.

In 2021, a California federal judge approved a landmark $650 million settlement for Illinois Facebook users in a class-action lawsuit over alleged violations by the social media giant of the biometric privacy law. Facebook, now known as Meta, also announced it would shut down its facial recognition system and delete more than a billion facial recognition templates it had stored.

More than 1 million Illinois Facebook collected as much as $435 each in the groundbreaking privacy settlement, including a third and final check for $7.20 that went out in October.