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2K Games Wins the Right To Store and Share Your Biometric Facial Data (engadget.com)

Posted by BeauHD on from the turn-your-head-and-cough dept.

In October 2015, two gamers who used face-scanning tech found in 2K Games' NBA series to create more realistic avatars filed a lawsuit against the company as they were concerned about how 2K would store and use their biometric data. On Monday, however, a New York federal judge ruled that neither games' biometric face scanning tech had established 'sufficient injury' to the plaintiffs, implying that their concerns over privacy were unfounded. Engadget reports: Using your console's camera, the company employs face-scanning tech in its popular NBA series, with both 2K's NBA 2K16 and 2K15 using the data to help players create more accurate avatars. In order to use the tech, players must first agree to 2K's terms and conditions, consenting that after scanning them their face may be made visible to others. While the plaintiffs agreed to the publisher's terms, the court case arose because the gamers claimed that 2K never made clear made clear that scans would be stored indefinitely and biometric data could be shared. With little evidence to suggest how their privacy would be at risk, the judge gave 2K the benefit of the doubt. Still, no matter the outcome, it's a landmark case, with biometric data sure to play an increasingly important role in identifying individuals in the future. While there is certainly nothing that suggests that 2K will use the data for nefarious means, the result of this case does raise some interesting questions about who owns the right to your digital likeness.

60 comments

  1. Dupe by Anonymous Coward · · Score: 0

    NT

    1. Re:Dupe by Anonymous Coward · · Score: 5, Informative

      At least this one doesn't sound like it was written by my grandpa. Instead of referring to them as "gamers," the other summary used the terms "video basketball players" and "athletes" and made it sound as though they'd been scanned as part of the game's production process.

    2. Re:Dupe by hashish · · Score: 1

      maybe the steering-clear and turn-your-head-and-cough departments need to have regular update meetings about new stories.

  2. And they did it twice! by Anonymous Coward · · Score: 0

    Which means if they do it one more time, it's a hat trick.

    1. Re:And they did it twice! by Anonymous Coward · · Score: 0, Offtopic

      When whites move into a black neighborhood, it's called gentrification (property value increases, which the left considers is "bad"), but when black moves into a white neighborhood, it's called diversification (property value decreases, which the left considers "good").

      Explain why the former is bad and the latter is worse. This seems 100% backward to me.

    2. Re:And they did it twice! by DonaId+Trump · · Score: 1, Offtopic

      Look at this guy, folks, a true American! Do you have a hat? Someone get this guy a hat. Not the MAGA one, this guy is educated, he wants the hat with the words spelled out. These hats are the best. How would you like to head the President's Council on Race Relations? You'd be great in the job, believe me.

    3. Re:And they did it twice! by Anonymous Coward · · Score: 0

      Lol... How does one "register" to become a junkie, and why exactly would one want to do that??

      How, Social workers and Doctors, Why?, mainly as the state then supplies the smackheads with Methadone to 'wean them off' Heroin, so, you have the crazy situation where they get the Methadone as a drinkable liquid supplied by the state at the chemist (pharmacy ISTR in USian terms), they have to drink it there and then, once done, they then toddle off to the nearest public toilet (in the same chemist/pharmacy store) and shoot up...state sponsored boost.

      As to why else they register?, almost gives them a get out of jail free card for their thievery, also gets them extra state benefits as well..
       

    4. Re:And they did it twice! by Anonymous Coward · · Score: 0

      Same shit in the US.

  3. Slashdot wins the right... by Anonymous Coward · · Score: 0

    ... to keep posting dupes of items still on the front page of the site.

    The result of this case does raise some interesting questions about who owns the monkeys responsible for 'editing'.

  4. Let's be fair by Anonymous Coward · · Score: 5, Informative

    2K Games Wins the Right To Store and Share The Biometric Facial Data That You Voluntarily Gave Them.

    This isn't scanning people against their will. This is people who decided they wanted their devices to scan them, uploaded them to 2K Games, and then decided to be concerned about their privacy.

    I'm not saying this isn't scummy on 2K's part or troubling. But the first step to not having companies build facial recognition of you is to not decide to scan your face and give it to them.

    1. Re:Let's be fair by Anonymous Coward · · Score: 0

      I'm amazed that people don't mind Microsoft having their facial data.

      Seems to me just ONE company needs to have a breech, like the many companies that have password breeches...problem is, it's rather difficult to change your face, while passwords are easy.

      There should be a new law that completely bankrupts a company if they somehow leak your biometric information, even unintentionally. That's about the only way it will discourage companies from doing this.

    2. Re:Let's be fair by BlueStrat · · Score: 0

      But the first step to not having companies build facial recognition of you is to not decide to scan your face and give it to them.

      The problem here is that you're asking people to take personal responsibility for their own decisions and actions. That is anathema in the US for a large percentage of the population. 'It's somebody else's fault' is the default fallback for far too many people regarding far too many areas in life when they choose poorly of their own free will.

      Strat

      --
      Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
    3. Re:Let's be fair by Anonymous Coward · · Score: 1

      You'd have a better argument if not for all of the con-artists who trick people into signing agreements, and all of the lawyers who swear by it, instead of owning up to doing the right thing.

      There's far too many people willing to squeeze you by the balls, and then give you the short end of the stick. That's the problem with your argument, as actually being responsible and not taking advantage of others is anathema in a certain percentage of the US's population.

      "You agreed to it" or "You let it happen" is the default fallback for far too many people regarding too many areas in life where they choose the deplorable of their own free will.

      Sorry, but as usual, BlueStrat, we should do the exact opposite of what you want.

    4. Re:Let's be fair by EvilSS · · Score: 1

      I'm amazed that people don't mind Microsoft having their facial data.

      Seems to me just ONE company needs to have a breech, like the many companies that have password breeches...problem is, it's rather difficult to change your face, while passwords are easy.

      There should be a new law that completely bankrupts a company if they somehow leak your biometric information, even unintentionally. That's about the only way it will discourage companies from doing this.

      Doing what, storing and leaking a photo of your face? That's all this is, with some 3D mapping applied to it. As far as "biometrics" go, you could get those with any decent photo. Don't want them leaked? Don't go around flashing them in public all the time. Face, iris, even fingerprints can be lifted from photos now. Google and Facebook are more than happy to do facial recognition on any photos you feed them, no facial scanning required by the end user at all.

      This entire lawsuit was bogus to begin with. There is nothing special about the way 2K did this. Hell, ever see one of those avatars? Most of them look like their owner after being run over with a cement mixer. There's probably less chance of using those for biometric identification than there is a regular photo.

      --
      I browse on +1 so AC's need not respond, I won't see it.
    5. Re:Let's be fair by rtb61 · · Score: 4, Insightful

      The question being avoided is the contractual right to your image and whether someone can lay claim to it, permanently. Consider if you agree to you image being used and not noticing in the fine print that it was permanent. How about if they starting using it via digital animation, to sell something you were opposed to. Your face up their selling say chocolate covered bullshit as the best thing ever and you loved the taste, now consider they also have your voice to tie to your image and there it is large as life blazing across the internet.

      Are you allowed redress, can you recover you personal data or biometrics, considering how they can be used against you in very extreme fashion. So lets stretch in on out, you go to the hairdresser for a hair cut by your claim that hairdresser can now claim right to the DNA in your hair, you don't claim it, in fact by assumed consent you give all rights of possession to the hairdresser, who can they sell you DNA information.

      People have a right to privacy which means, just like all other rights, they can suspend them if they choose but just like all other rights, the snap right back in place the very second they choose to no longer suspend them. It is a fair and reasonable right for people to be able to reclaim their privacy, to demand information about them be deleted, subject to reasonable limits ie like non-personalised data or public record data or prescribed government held and restricted from public access data. What rights do corporations have to your privacy, none what so ever and they need to be taught that lesson with harsh laws and custodial sentences.

      --
      Chaos - everything, everywhere, everywhen
    6. Re:Let's be fair by Anonymous Coward · · Score: 0

      You'd have a better argument if not for all of the con-artists who trick people into signing agreements, and all of the lawyers who swear by it, instead of owning up to doing the right thing.

      There's far too many people willing to squeeze you by the balls, and then give you the short end of the stick. That's the problem with your argument, as actually being responsible and not taking advantage of others is anathema in a certain percentage of the US's population.

      "You agreed to it" or "You let it happen" is the default fallback for far too many people regarding too many areas in life where they choose the deplorable of their own free will.

      Sorry, but as usual, BlueStrat, we should do the exact opposite of what you want.

      We should listen to this man. I mean after all, he didn't put a gay little portion of his username at the bottom of his post so you just KNOW he's serious.

    7. Re:Let's be fair by mjwx · · Score: 3, Interesting

      2K Games Wins the Right To Store and Share The Biometric Facial Data That You Voluntarily Gave Them.

      This isn't scanning people against their will. This is people who decided they wanted their devices to scan them, uploaded them to 2K Games, and then decided to be concerned about their privacy.

      I'm not saying this isn't scummy on 2K's part or troubling. But the first step to not having companies build facial recognition of you is to not decide to scan your face and give it to them.

      Sigh, you're either a very bad lawyer or someone who lives in an incredibly black and white world.

      Given how 2K operates, it is entirely possible that the game refuses to unlock certain features (up to and including multi-player access) until you let it scan your face. This is still voluntary under the technical definition but we tend to call it by it's proper name.. coercion.

      --
      Calling someone a "hater" only means you can not rationally rebut their argument.
    8. Re:Let's be fair by Entrope · · Score: 1

      Commercial use of your data -- such as making another game -- would violate established rights (e.g. right to publicity) in a way that would particularize harm to the person whose data was used without explicit consent. Note that the court threw the case out specifically because the plaintiffs could not demonstrate that kind of harm, so the next case would be protected.

      Alternatively, consider that almost any time you buy a ticket to a large attraction, there is fine print saying that the operator will have the right to use your image in promotional materials. In that context, 2K Games is not doing anything very novel.

    9. Re:Let's be fair by Anonymous Coward · · Score: 0

      The question being avoided is the contractual right to your image and whether someone can lay claim to it, permanently.

      This question's being avoided because it was never a part of the lawsuit to begin with. They sued based upon improper handling of biometric data. Biometric data is information which can (presumably) uniquely identify you. A scan of your face, broken down into relatively low-density polygons, can't uniquely identify you and so the plaintiffs couldn't establish any grounds for harm.
      If the game scanned fingerprints and distributed them to all gamers in unencrypted format, such that the fingerprint scans could be potentially used for identity theft or other nefarious means, the case wouldn't have been dismissed.
      If people want to question whether a company has a contractual right to their image and lay claim to it permanently, they need to invoke a different lawsuit based on privacy, copyright, or similar grounds. Not by trying to claim release of biometric data.

    10. Re:Let's be fair by Anonymous Coward · · Score: 0

      The question being avoided is the contractual right to your image and whether someone can lay claim to it, permanently. Consider if you agree to you image being used and not noticing in the fine print that it was permanent. How about if they starting using it via digital animation, to sell something you were opposed to. Your face up their selling say chocolate covered bullshit as the best thing ever and you loved the taste, now consider they also have your voice to tie to your image and there it is large as life blazing across the internet.

      Are you allowed redress, can you recover you personal data or biometrics, considering how they can be used against you in very extreme fashion. So lets stretch in on out, you go to the hairdresser for a hair cut by your claim that hairdresser can now claim right to the DNA in your hair, you don't claim it, in fact by assumed consent you give all rights of possession to the hairdresser, who can they sell you DNA information.

      People have a right to privacy which means, just like all other rights, they can suspend them if they choose but just like all other rights, the snap right back in place the very second they choose to no longer suspend them. It is a fair and reasonable right for people to be able to reclaim their privacy, to demand information about them be deleted, subject to reasonable limits ie like non-personalised data or public record data or prescribed government held and restricted from public access data. What rights do corporations have to your privacy, none what so ever and they need to be taught that lesson with harsh laws and custodial sentences.

      If only there were some body of people, chosen by the rest of us, who could get together and create binding rules for the benefit of all of us, instead of the constant corporate handouts and regulatory capture we have today. Alas, it's just a pipe dream. Maybe after another revolution.

    11. Re:Let's be fair by Anonymous Coward · · Score: 1

      So, without ANY evidence whatsoever, you're going to assume people were "coerced" into disclosing this information to unlock core game features?

      The only feature I see mentioned in the story is a feature to build a customized avatar (i.e. to have yourself in the game). That's not exactly locking out major core game features. And, by the way, it's a feature that would REQUIRE that informtion.

      Also, we're talking about videogames - things people buy for fun to do to entertainment. Coersion? Really? Nobody NEEDS a videogame.

      And if a game manufacturer locked off major portions of a game until you sign away your privacy, that would be something that I'd expect you'd be able to find in the press (for example, the current Hitman's locking out single-player features unless an internet connection was present was widely reported). If you bought the game and were locked out of major features unless you signed away your privacy, you'd likely have standing to sue (much better standing than the plaintiffs have here) under deception laws.

      Even if agreed to call this coercive behavior, if you are presented with a choice of "hey - we're going to cripple an entertainment experience unless you give us your personal data," it's a much better answer to say no and challenge the demand than give in and sue after the fact.

    12. Re:Let's be fair by EvilSS · · Score: 1

      ...not noticing in the fine print that it was permanent.

      Then that is on you. It would be no difference that if you agreed to be in a commercial, but didn't read the fine print that the commercial or footage from it could be used in perpetuity and for anything the company wanted. There are also many uses that don't require your permission. I don't need your permission, for example, to take your photo on the street and sell it as part of a coffee table book or to sell prints in a gallery.

      --
      I browse on +1 so AC's need not respond, I won't see it.
    13. Re:Let's be fair by Anonymous Coward · · Score: 0

      We should listen to this man. I mean after all, he didn't put a gay little portion of his username at the bottom of his post so you just KNOW he's serious.

      I know, it's rather silly, I can understand when "roman.mir" is anon-posting, as he is wont to do, but there's no need when you are a far less profligate poster who doesn't even participate in conversations most of the time.

    14. Re:Let's be fair by Anonymous Coward · · Score: 0

      Don't be rediculous, with the number of 30 page EULA's we have to 'agree' to in order to use everyday tech, there is no time for reading all of them. As normal people, we assume there are laws in place to protect us from overreach, so we can go about our lives.

    15. Re:Let's be fair by sysrammer · · Score: 1

      I would think there would be some really interesting face-scans out there. I'd probably use my dog. Sure, not very creative, but it would amuse me.

      --
      His ignorance covered the whole earth like a blanket, and there was hardly a hole in it anywhere. - Mark Twain
    16. Re:Let's be fair by Anonymous Coward · · Score: 0

      So you don't actually know what they do but you're going to say they're evil?

    17. Re:Let's be fair by Anonymous Coward · · Score: 0

      But the first step to not having companies build facial recognition of you is to not decide to scan your face and give it to them.

      No, the first step is to affirm that you can't use someone's image without their permission.

      Otherwise, we have the DMV, other governmental agencies, various and numerous security cameras, and $Deity knows what else involuntarily scanning you on a daily basis. So you can't prevent yourself being permanently added to a facial recognition database at all.

    18. Re:Let's be fair by Anonymous Coward · · Score: 0

      2K Games Wins the Right To Store and Share The Biometric Facial Data That You Voluntarily Gave Them.

      This isn't scanning people against their will. This is people who decided they wanted their devices to scan them, uploaded them to 2K Games, and then decided to be concerned about their privacy.

      I'm not saying this isn't scummy on 2K's part or troubling. But the first step to not having companies build facial recognition of you is to not decide to scan your face and give it to them.

      How Voluntary are we talking here? Are we talking "would you like to share" or "By using this software you agree to"? Or "to play this game we need..."

    19. Re:Let's be fair by rtb61 · · Score: 1

      It is not permanent, nobody can lay claim to your rights, it is just legal bullshit. The second you claim any of your rights they must immediately hand them back, they can seek recompense for the loss but they most certainly can not keep them, you are not a slave. You can not claim my image to infer I support your product, that is technically theft of free speech, you are stealing my free right to speech by forcing a false statement upon me.

      --
      Chaos - everything, everywhere, everywhen
    20. Re:Let's be fair by EvilSS · · Score: 1

      Yes, they can, if you contractually allow them to. It's not like they are claiming an EXCLUSIVE right, but you most certainly can do it. How do you think model releases work? Those don't expire. Also a slave, really? That's not a bit hyperbolic? They don't own YOU, they have the right to use your image as they stated in the contract. When a person takes your photo it does not, despite some beliefs to the contrary, steal your soul.

      --
      I browse on +1 so AC's need not respond, I won't see it.
    21. Re:Let's be fair by EvilSS · · Score: 1

      Well you know what they say about assuming.

      --
      I browse on +1 so AC's need not respond, I won't see it.
  5. Cleanup on aisle AI. by Anonymous Coward · · Score: 0

    Maybe Slashdot should hire an AI editor to clean up the editorial process?

  6. Also, can still sue under state law by raymorris · · Score: 4, Informative

    Also, the plaintiffs can still sue under state law. The ruling is that they can't make a federal case out of it.

  7. Second similar decision in a few hours by Anonymous Coward · · Score: 0

    Apparently this happens pretty often, based on this story from a few hours ago: https://games.slashdot.org/story/17/01/31/1955242/us-judge-rejects-suit-over-face-scanning-for-video-game

  8. the idiots are lucky they didn't get counter sued by chromaexcursion · · Score: 0

    Read the ELU.
    OK, few do. But read it before you sue. I'm surprised a lawyer took the case.

  9. what happens when... by Anonymous Coward · · Score: 0

    an nba player does this...

    then you have a conflict between eula and the rights deal between 2k and the nba/players union.

  10. Re:the idiots are lucky they didn't get counter su by mmell · · Score: 1
    He's a lawyer - he thought he could make money (or maybe the legal equivalent of street cred). He must've believed there was a case to be made.

    Lawyers always act in "good faith" - but nobody has ever fully explained to me what "good faith" means, let alone what they have "good faith" in.

  11. Haven't seen this story before! by Anonymous Coward · · Score: 0

    Oh wait: https://games.slashdot.org/story/17/01/31/1955242/us-judge-rejects-suit-over-face-scanning-for-video-game

    Not even on a different page...

  12. Your face isn't private data by Anonymous Coward · · Score: 0

    Unless you have somehow managed to avoid ever being on camera or seen in public, which would pretty much mean you never left your cave, you have no expectation of privacy in the appearance of your face. The problem is that the law is stupid by creating a legal liability for storing a picture of someone that they posted online. Or did Illinois intend to outlaw Facebook?

    1. Re:Your face isn't private data by Spamalope · · Score: 3, Interesting

      Given what tech companies have been shown to turn over to three letter agencies, I'd be concerned that they'd turn the data over so that every single use of the imperfect facial recognition software include a scan of my face putting me at risk of being targeted.

    2. Re:Your face isn't private data by Opportunist · · Score: 1

      If Illinois tried to become way more popular than it is now, they would.

      --
      We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
  13. Invalid by Anonymous Coward · · Score: 0

    Invalid outside almost everywhere in the US.

  14. Re:the idiots are lucky they didn't get counter su by Dutch+Gun · · Score: 1

    nobody has ever fully explained to me what "good faith" means, let alone what they have "good faith" in.

    Maybe it means lawyers have "good faith" in a legal system created by and run entirely by other lawyers. I'm pretty sure we have the most lawyers per capita than any other major industrialized nation on earth. And they all want to make a living. And so, we pay more for products to cover the costs of absurd lawsuits like this.

    I suppose the benefit is that it's not hard to find a cheap lawyer when you really need one, huh? Oh, wait, no, most lawyers still charge you absurd hourly rates. I wonder how they manage that?

    --
    Irony: Agile development has too much intertia to be abandoned now.
  15. Screen Actors Guild by Anonymous Coward · · Score: 1

    Register with the Screen Actors Guild, as your likeness is used in a game, and then use the protections against digital reproductions of an actors likeness in a film or game to get them to remove you :-)

  16. No they didn't by Anonymous Coward · · Score: 0

    This judge has jurisdiction in the United States only.

  17. Shared how? by sabbede · · Score: 1
    I can think of at least one obvious situation where one's face would be shown to others by 2K. You're playing with them over the internet and they need to see your character.

    And with indefinite storage, you don't have to rescan your face when NBA 2K17 comes out.

    To me, it doesn't sound like some sketchy privacy infringement, it sounds like a functional necessity for a pretty cool feature.

  18. Too much work? by AndyKron · · Score: 0

    Or you could join a local team and actually play basketball, but I suppose that would be too much work, wouldn't it?

  19. Re:the idiots are lucky they didn't get counter su by gurps_npc · · Score: 3, Informative

    ELU's are not contracts and can be fought in court.

    --
    excitingthingstodo.blogspot.com
  20. Re:the idiots are lucky they didn't get counter su by nasch · · Score: 1

    According to this we're a fairly distant second after Israel.

    http://dadaviz.com/i/3531/

  21. Next GTA by ArhcAngel · · Score: 1

    So now you play a basketball game and the next thing you know your the protagonist in GTA - Hot Coffee.

    --
    "A person is smart. People are dumb, panicky dangerous animals and you know it." - K
  22. Re:the idiots are lucky they didn't get counter su by Dutch+Gun · · Score: 1

    Interesting. Another interesting stat I found. Most litigious countries:

            Germany: 123.2/1,000.
            Sweden: 111.2/1,000.
            Israel: 96.8/1,000.
            Austria: 95.9/1,000.
            U.S.: 74.5/1,000.

    Well, it's not a great thing that we're still near the top in these types of lists.

    --
    Irony: Agile development has too much intertia to be abandoned now.