Lawsuit over NBA 2K facial scanning privacy concerns falls flat

A 2015 class action lawsuit filed against Take-Two over biometric scanning concerns in recent NBA 2K games has been rejected by a U.S. district judge, according to The Hollywood Reporter.

While the court case itself deals with some of the issues that surround the ethics and potential privacy concerns behind digitally importing facial scans into video games, the dismissal of the class-action also offers developers a look at the unique considerations they'll have to keep in mind while using biometric technology within their own games.

The original suit alleged that biometric data collected from facial scans used by character customization in NBA 2K15 and NBA 2K16 violated the Illinois Biometric Information Privacy Act. Players claimed that Take-Two failed to obtain their informed consent before scanning and saving three-dimensional scans of their faces.

It is worth noting here that the process of scanning a player's face into an NBA 2K game requires the players to agree to terms and conditions that disclose facial scans will be stored on Take-Two’s servers.

The case was ultimately dismissed today by U.S. District Judge John Koeti on the grounds that the privacy concerns shared by the plaintiffs didn’t establish sufficient harm or injury, who stated the following:

"At best, more extensive notice and consent could have dissuaded the plaintiffs from using the MyPlayer feature, meaning that Take-Two would have never collected the plaintiffs’ biometrics. But the plaintiffs have failed to establish that their use of the MyPlayer feature resulted in any imminent risk that the data protection goal of the BIPA would be frustrated.

Consequently, more extensive notice and consent could not have altered the standing equation because there has been no material risk of harm to a concrete BIPA interest that more extensive notice and consent would have avoided."