Take-Two Wins Court Case to Store NBA 2K Biometric Face Data

Game publisher Take-Two has emerged victorious from a court case which challenged its ability to store players’ biometric data from its face-scanning feature in its NBA 2K series – developed by 2K – through its MyPlayer game mode (as seen in the video below). A proposed class action lawsuit launched by two gamers, concerned that Take-Two was storing this biometric data on its servers indefinitely, was thrown out of a New York Federal Court by US District Judge John Koetl yesterday (30th January).

“The plaintiffs allege that they agreed to the MyPlayer terms and conditions, that NBA 2K15 scanned their faces to create personalized basketball avatars, and that the plaintiffs used their personalized basketball avatars for in-game play,” Koetl writes in his judgement. “The plaintiffs thus allege that the MyPlayer feature functioned exactly as anticipated. There is no allegation that Take-Two has disseminated or sold the plaintiffs’ biometric data to third- parties, or that Take-Two has used the plaintiffs’ biometric information in any way not contemplated by the only possible use of the MyPlayer feature: the creation of personalized basketball avatars for in-game play. … The purported violations of the BIPA are, at best, marginal, and the plaintiffs lack standing to pursue their claims for the alleged bare procedural violations of the BIPA.”

According to the Judge, the plaintiffs did not effectively establish an imminent risk of harm that could be caused by Take-Two’s storage of such data, calling the idea “highly speculative and abstract.” He also dismissed the idea that the company failed to give adequate notice or consent.

“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.”