The District Court for the Northern District of Illinois recently granted in part a motion to dismiss a putative class action complaint asserting wiretapping, Illinois Biometric Information Privacy Act (“BIPA”), and consumer protection claims relating to their eufy home security cameras and video doorbells (the “Eufy Products”).  See Sloan, et al. v. Anker Innovations Ltd., No. 22-CV-7174 (N.D. Ill. Jan. 9, 2024).  Plaintiffs contend in their complaint that the Eufy Products applied a facial recognition program to differentiate images of known and unknown individuals within home security services and purportedly misrepresented data storage and encryption practices for the Eufy Products.

While the court allowed some of the BIPA and consumer protection claims to proceed past a motion to dismiss, it granted defendants’ motion to dismiss on several grounds:

• Federal Wiretap Act – The court dismissed plaintiffs’ federal Wiretap Act Claim (8 U.S.C. § 2510), ruling Defendants, who own and operate the eufy Security app, cannot be liable under the Act because they are a “party to the communication.”  The court reasoned that the communication with the app “necessarily requires” defendants’ participation, and allegations that defendants subsequently uploaded the data to a third-party server do not transform the actions into an interception.

• BIPA – The court dismissed this claim as to non-Illinois residents because the statute does not apply extraterritorially, and plaintiffs “failed to allege sufficient facts to tie their harm to Illinois.”  On the latter point, the court rejected plaintiffs’ argument that an Illinois choice of law provision in the terms of service could expand the reach of the statute beyond Illinois.  

• Illinois Consumer Fraud Act – The court likewise dismissed the Illinois Consumer Fraud Act claims for non-Illinois plaintiffs on extraterritoriality grounds.

• Other Consumer Protection Claims (Illinois, New York, Massachusetts, Florida) – The court dismissed all the consumer protection claims to the extent they relied on the following statements:  (1) “your privacy is something that we value as much as you do,” (2) “that’s just the start of our commitment to protect you, your family and your privacy,” (3) “privacy and protection are our top priorities,” (4) “your privacy is our priority,” and (5) “to start, we’ve taken every step imaginable to ensure that your data remains private, with you.”  The court found that these statements amounted to non-actionable “puffery” because they related to “general values and priorities of a company” and were “subjective, not objective facts that one can prove true or false.” 

These remain important defenses for defendants to consider when faced with wiretapping, BIPA, or other privacy-related claims.