Apple Faceprints Go to BIPA Jury; Face Crops Ruled Not Biometric

Apple Photos Faceprints Head to a BIPA Jury, but Face Crops Are Not Biometric Identifiers

A federal judge in Illinois ruled on September 30, 2026 that a jury must decide whether the faceprints Apple's Photos app builds from users' pictures are scans of face geometry under the state's biometric privacy act. The same order held that cropped face images are not biometric data.

Information last verified on October 14, 2026. This is a developing story; we update it as the record changes.

Jurisdiction scope: This article addresses one federal summary judgment and expert ruling applying the Illinois Biometric Information Privacy Act to consumer photo-app face grouping. It does not address biometric laws in other states, government use of facial recognition, or workplace fingerprint timekeeping. For the underlying statute, see how Illinois defines a biometric identifier and what BIPA requires before collection.

What Happened

On September 30, 2026, U.S. District Judge Nancy J. Rosenstengel issued a 34-page memorandum and order on the competing summary judgment motions in Doe v. Apple Inc., No. 3:20-CV-421-NJR, in the Southern District of Illinois. The order entered the docket as Doc. 373 and carried an unusual instruction in its own final paragraph: "This Order shall remain provisionally sealed until October 7, 2026. Motions to redact any portion of the Order shall be filed by that date." The version now in the public record is the one filed September 30.

The case concerns the "People" album in Apple's Photos app, which is preinstalled on iPhones, iPads, Macs and Apple TVs and cannot be uninstalled. The parties agreed broadly on the mechanics. A deep neural network runs over every photo in a user's library, detects faces and upper torsos, and draws bounding boxes. From those boxes the software cuts two smaller pictures, a "face crop" and a "torso crop." The face crop is then fed to a convolutional neural network, which outputs a 128-dimensional vector of decimal numbers. Some Apple employees, numerous internal Apple documents and the plaintiffs all call that vector a "faceprint." A clustering algorithm compares faceprints and groups matching photos into the People album.

Plaintiffs' Fourth Amended Complaint (Doc. 251) alleged that both the face crops and the faceprints are biometric data, and that Apple collected them without the written notice and consent BIPA section 15(b) requires and without the public retention and destruction policy section 15(a) requires. Apple did not contest either omission. As the court put it, "There is no dispute that Apple did not develop, publish, and comply with a written data retention and destruction policy with respect to the Photos app's facial recognition technology. Nor did it provide notice and obtain written consent from any Illinois user." Apple's defense was that there was never any biometric data to begin with, and that in any event Apple does not collect or possess it.

The court had certified the case as a class action on June 5, 2026 (Doc. 342), with three groups:

Local Device Class: Every Illinois citizen whose Apple Device put a photograph of that citizen into a People album at any time between September 13, 2016, and the present.

iCloud Subclass: Every Illinois citizen who had an Apple Device with a People album tagged with that citizen's name or other identifier, and had an iCloud account enabled for photo storage, at any time between September 13, 2016, and the present.

iCloud Faceprint Subclass: Every Illinois citizen who had an Apple Device running iOS 17.6, MacOS Sonoma 14.6 or iPadOS 17.6 or later and: (1) had iCloud photo library enabled with at least 10 gigabytes of storage, and (2) their Apple Device put a photograph of that citizen into a People album, and (3) who had 5,000 or more assets (i.e., photos and videos) in their iCloud photo library, at any time between March 25, 2025, and the present (inclusive).

The face crop holding, and the subclass that fell with it

BIPA's definition of "biometric identifier" is a closed list: "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry." 740 ILCS 14/10. "Biometric information" is information based on a biometric identifier and used to identify an individual. Because biometric information is derived from a biometric identifier, the court worked through the identifier question first, and framed it as two elements: is the data a scan of face geometry, and is it capable of identifying a person.

Face crops failed both. Apple showed that creating a crop does not map the coordinates of a face, and that whatever facial landmark information the detection step uses is spent on sizing the bounding box and is never passed to the faceprinting network. "Once that process occurs," the court wrote, "the face crop is only that: a cropped image of a face." The plaintiffs argued that the detection algorithm still uses geometric information about where the face sits in the frame and adjusts the box using features such as the eyes. The court was unpersuaded on the record before it: "the location of a face within a photo says nothing about that face's geometry, and Plaintiffs have not identified any record evidence suggesting that this information would be sufficient to identify a person."

That holding had a structural consequence. The iCloud Subclass had been certified on a theory that only face crops, user-entered labels and other metadata were synced to iCloud. With face crops out of the statute, the court found the subclass "does not have a viable legal theory on which to proceed" and decertified it under Federal Rule of Civil Procedure 23(c)(1)(C). The decretal paragraph is explicit that nobody was dropped from the case: "The members of the former iCloud Subclass remain members of the Local Device Class."

The faceprint holding: a jury question, in both directions

On faceprints, the court denied both sides. Apple argued that its software merely "generates data" from photographs to group similar pictures, that the vector corresponds to no visible feature or measurement, that it cannot be used to recreate a face, and that under BIPA "face geometry" means a three-dimensional representation of facial structure.

The court treated that as a reading problem rather than a factual one. Looking to dictionary meanings, it defined "scan" as "to examine by point-by-point observation or checking" and noted that "geometry," outside mathematics, can also mean a "configuration" or the spatial arrangement of parts, which it called "far broader than Apple's suggested definition." Both terms, it said, had been read too narrowly: "Like Facebook, Apple has construed the terms 'scan' and 'face geometry' too narrowly," citing the Northern District of California's analysis of Facebook's Tag Suggestions feature in In re Facebook Biometric Information Privacy Litigation, 2018 WL 2197546 (N.D. Cal. May 14, 2018), the summary judgment ruling in the litigation whose class certification decision, 326 F.R.D. 535 (N.D. Cal. 2018), was affirmed as Patel v. Facebook, Inc., 932 F.3d 1264 (9th Cir. 2019).

On the evidence, the court held that "a reasonable jury could find that Apple's technology incorporates scans of face geometry, as those terms are ordinarily understood, to create faceprints." It leaned on plaintiffs' machine learning expert Dr. Sheryl Brahnam, who explained that the pixels of a two-dimensional photo encode information about three-dimensional shape, and on plaintiffs' source code expert Dr. Atif Hashmi, who opined that a faceprint can be partially reverse-engineered back into a face through model inversion. It also noted that Apple's own biometrics expert, Dr. Creed Jones, agreed that convolutional networks "operate directly" on an image's pixels and offered no alternative theory of how the network distinguishes faces "other than some reliance on geometry in its broadest sense."

The same section cuts the other way. Dr. Jones opined that faceprints are not measurements, are not based on facial landmarks, and that the shapes a convolutional network recognizes "are more accurately described as local intensity patterns in the pixels of a photograph than geometric shapes." The court concluded that "a jury crediting Dr. Jones's opinions over Dr. Brahnam's could conclude that Apple's CNN does not scan face geometry," so the plaintiffs' motion failed too.

The identification element split the same way. The court sided with the weight of authority that BIPA does not require a defendant to have actually identified anyone, only that the data be capable of it, citing Zellmer v. Meta Platforms, Inc., 104 F.4th 1117 (9th Cir. 2024), among others. It pointed to Apple employee testimony that a faceprint "can be used to uniquely identify a person" and to an Apple patent application describing a faceprint as "a feature vector defined in n-space that uniquely identifies a face image but does not associate a name with the face." It rejected Apple's argument that identification requires a formal enrollment database, reasoning that Apple's position "would require the Court to read into BIPA a requirement that does not exist in its text." But it also recorded contrary evidence, including Dr. Jones's testimony that the network would emit an indistinguishable 128-number vector from an image with no human face in it, and Apple engineer testimony that the output is merely "a number of bits and bytes." A footnote notes that none of the named plaintiffs labeled their People albums with more than a first name.

Collection and possession: the July 2024 sync is the hinge

Apple's second line of defense was that even if faceprints are biometric data, it never collects or possesses them. That argument runs through G.T. by & through Hanlon v. Samsung Electronics America, Inc., 186 F.4th 470 (7th Cir. 2026), which the order is careful to note was decided on a motion to dismiss. Doc. 373 reads G.T. as determining that BIPA sections 15(a) and (b) require an entity to "have or have obtained some degree of 'control' over the biometric data in question," and as rejecting "the idea that a company 'controls' biometric data by virtue of it solely providing the software that captures the data." The order quotes the Seventh Circuit's conclusion that software "that allows a user to voluntarily take pictures of oneself, friends, family, and other passersby and, in the process, create face templates that remain parked within the confines of the user's own personal device not only falls short of triggering BIPA's statutory requirements but strays too far afield from the statute's heartland." As the order recounts that line of authority, it also takes in Bhavilai v. Microsoft Corp., 716 F. Supp. 3d 640 (N.D. Ill. 2024), which the order describes as holding that "control of the facial scan software is not the same as control of the facial scan data that is collected using the software," and Barnett v. Apple Inc., 225 N.E.3d 602 (Ill. App. Ct. 2022), the Touch ID and Face ID case in which, on the order's account, an Illinois appellate court found Apple's "device and software are the tools" while it is the user who "utilizes these tools to capture her own biometric information."

The court's answer was blunt: "G.T. is not the silver bullet that Apple believes it to be." The reason is a software change. In July 2024 Apple shipped what the parties call the Sync Update, which transmits faceprints to iCloud for devices on iOS 17.6 or later with iCloud Photos enabled, an iCloud tier of at least 10 gigabytes, and more than 5,000 photos or videos. Unlike the Samsung plaintiffs, the court wrote, "it is undisputed that, with its July 2024 software update, Apple took faceprints from users' devices and began syncing them to its cloud-based servers." It also cited testimony from Meera Shah, a former senior software engineer and head of product, program, and operations for Apple Cloud Services, that Apple decides whether to make faceprints, what metadata attaches to them, where and how they are stored on a device, whether they are encrypted, how long they are retained, and whether to push an update that deletes them for everyone.

On encryption the court worked through an extended analogy to a collector of Egyptian artifacts who cannot read the hieroglyphics on them but can still modify, publish or destroy them. The point was that "control" does not require understanding the contents. BIPA, it noted, contains no encryption carveout, and section 15(e) separately requires reasonable data security, which suggests the legislature treated protection as an obligation rather than a defense. Applied to Apple: "its insistence that it cannot unscramble and decipher the data is immaterial to its 'control' of the data." The court also recorded that Apple conceded at oral argument that it could decide one day to stop protecting the data with end-to-end encryption.

Finally, the court distinguished Barnett on consent and knowledge. Touch ID and Face ID users opted in and knew their biometrics were being captured and stored for login. Here, "users do not consent to the collection of their faceprints, they do not know the faceprints are being collected, there is no ability for users to turn off the feature, and there is no user knowledge that faceprints are saved on the device or in the cloud."

The plaintiffs did not win the control question either. The court also declined to grant them summary judgment as to the Local Device Class "because Plaintiffs have conceded that an issue of fact exists as to whether Apple can access faceprints stored on the device."

What the order did not decide

Two things need care. First, the court's treatment of collection and possession as to the iCloud Faceprint Subclass is unresolved. The body of the order states that Apple "is not entitled to judgment as a matter of law on the issue of collection or possession as to the iCloud Faceprint Subclass," and then, at the close of the same paragraph, that the court "reserves ruling as to the iCloud Faceprint Subclass until class notice can be issued to the remaining class and subclass, as amended by this Order." The decretal section says only: "The Court RESERVES RULING on the issue of collection or possession of the data at issue as to the iCloud Faceprint Subclass." On either reading the question is open, and it should not be reported as settled.

Second, this is a summary judgment ruling and nothing more. Apple has not been found liable under BIPA, no damages have been awarded, and no jury has found that a faceprint is a scan of face geometry. The court did hold that the plaintiffs are "aggrieved" within the meaning of the statute without proving Apple ever accessed their faceprints, relying on the two Seventh Circuit decisions it cites for that point, Bryant v. Compass Group USA, Inc., 958 F.3d 617 (7th Cir. 2020), and Citizens Insurance Co. of America v. Wynndalco Enterprises, LLC, 70 F.4th 987 (7th Cir. 2023). That goes to whether these plaintiffs may recover under the statute without showing any further harm, not to whether Apple did anything wrong. Neither order sets a trial date.

The companion expert ruling

A second 36-page order issued the same day, Doc. 372, resolved five competing motions to exclude expert testimony under Federal Rule of Evidence 702 and Daubert. Both sides lost ground. Apple's motions against plaintiffs' experts Jeffrey S. Dunn and Dr. Sheryl Brahnam were granted in part and denied in part; its motion against plaintiffs' expert Dr. Aram Sinnreich was granted outright; plaintiffs' motion against Apple's expert J. Marc Brasher was granted; and plaintiffs' motion against Dr. Creed Jones was granted in part and denied in part.

The common thread is that neither side's expert gets to tell the jury what the statute means. The court held that Dr. Brahnam may explain what a feature map and a faceprint are in the field of machine learning, but that her opinions that those outputs are "scans of face geometry" are "legal conclusions that invade the province of the jury." It applied the same rule to Apple: "Dr. Jones may not offer opinions as to the definitions of 'scan,' 'geometry,' and 'identify,'" quoting the Seventh Circuit's observation in Hillman v. Toro Co., 164 F.4th 971 (7th Cir. 2026), that "Judges do not need expert testimony to interpret and apply domestic statutes." Because "faceprint" is not a word that appears in BIPA, Dr. Jones may still offer his own definition of that term. His encryption opinions were excluded as irrelevant, on the same reasoning the summary judgment order used.

What the Law Actually Says

BIPA, 740 ILCS 14/1 et seq., has been in force since 2008, and section 20 provides that "[a]ny person aggrieved" by a violation "shall have a right of action" against an "offending party." That private remedy is what puts BIPA enforcement in the hands of individual plaintiffs rather than a state agency. Two of its subsections drive this case.

Section 15(b) bars a private entity from collecting, capturing, purchasing, receiving through trade or otherwise obtaining a person's biometric identifier or biometric information unless it first gives written notice of what is being collected and why, and obtains a written release. Section 15(a) requires any private entity in possession of such data to develop and publish a written retention schedule and destruction guidelines. Section 15(e) separately requires the entity to protect the data with at least the care it uses for other confidential information, which is the provision the court read as evidence that encryption is an obligation rather than an escape hatch.

The definitional gate is narrow by design. Section 10 lists the identifiers exhaustively, and it then names a set of things that are not identifiers, photographs among them. The Ninth Circuit quoted the provision in full in Patel v. Facebook, Inc., 932 F.3d 1264 (9th Cir. 2019): biometric identifiers "do not include 'writing samples, written signatures, photographs, human biological samples used for valid scientific testing or screening, demographic data, tattoo descriptions, or physical descriptions such as height, weight, hair color, or eye color.'" Courts have added a functional requirement on top of the text: the data must be capable of identifying a person, because reading the statute otherwise would, in the Ninth Circuit's words in Zellmer, "write the term 'identifier' out of BIPA." Our standing guide to the notice, consent and retention duties BIPA imposes on private entities walks through the full list, the statutory exclusions and the damages provisions.

This order sharpens one line that general summaries of BIPA tend to blur. The usual shorthand is that a photograph is outside BIPA but a face geometry scan extracted from a photograph is inside it. That remains right. What this court added is narrower than it first looks, because it did not reach the photograph exclusion at all. It held that a crop made after software located a face, without mapping that face's coordinates, is not a scan of face geometry, and that on this record no evidence showed that the information used to make the crop could identify a person. The cut is not where the picture came from, it is whether the output encodes something about the face's configuration and can be traced to a person.

The possession question is now equally load-bearing, and the control requirement it turns on did not start with G.T. The Illinois Supreme Court observed in Cothron v. White Castle System, Inc., 216 N.E.3d 918 (Ill. 2023), that section 15(b)'s active verbs "all mean to gain control." On the order's account, an Illinois appellate court had already read section 15(a)'s "possession" to mean "to have control" in Barnett, and the Northern District of Illinois had already held in Bhavilai that controlling facial-scan software is not controlling the facial-scan data collected with it. What G.T. added, on this court's reading, is that "[t]he Seventh Circuit recently signaled its approval of the control requirement," together with a holding that solely providing the software that captures the data is not control. That is why a single server-side sync feature, shipped in July 2024, is doing most of the work in this litigation.

Readers comparing states should note how unusual the Illinois posture is. Texas and Washington both have dedicated biometric statutes enforced only by their attorneys general, and the comprehensive consumer privacy laws in states such as Colorado, Connecticut and Virginia treat biometric data as a sensitive category without creating a private biometric claim. Washington is a partial exception, because its My Health My Data Act counts biometric data as consumer health data and lets consumers sue under the state Consumer Protection Act. Our overview of how other states approach biometric regulation sets out those differences, and the broader rules on facial recognition in the United States covers the separate question of government and law enforcement use, which BIPA does not reach because it applies to private entities.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The result in this order is easy to summarize and easy to misread. Apple won a piece of it, lost most of it, and the piece it won took a whole certified subclass with it. The more durable part is the reasoning, because it is a merits-stage reading of two BIPA terms that few courts have addressed, applied to technology that did not exist when the statute was drafted.

Three things stand out. The first is how the court handled the gap between how facial recognition worked in 2008 and how it works now. The order opens with that gap explicitly, noting that in 2008 the field relied on measured distances and angles between facial landmarks, while modern neural networks derive information straight from pixels and require no measurement at all. Apple's argument was essentially that the statute froze in 2008: if "face geometry" means measured geometry, then a system that measures nothing cannot scan it. The court declined to read the statute that narrowly and reached for ordinary meaning instead, where "geometry" can mean a configuration. That approach follows the Patel lineage rather than breaking new ground, but it is a district court applying it at summary judgment on a developed record, with expert reports and source code review behind it, rather than at the pleadings stage. That makes the analysis more useful to other courts than the dismissal-stage decisions that dominate this area.

The second is that the court separated the question of what the technology does from the question of what the statute's words mean, and assigned each to a different decisionmaker. The companion expert order is where this is clearest: both sides' experts may describe the machinery, and neither may tell the jury whether the machinery performs a "scan" of "face geometry." Read together, the two orders set up a trial in which the jury hears competing accounts of what a convolutional network actually does to an image and then applies the court's definition to it. Parties litigating BIPA against machine learning systems should expect that division, and should expect expert reports written as statutory argument to be trimmed.

The third is the possession analysis, which is the part most likely to be cited in matters that have nothing to do with photo apps. Apple made the strongest version of the on-device argument available after G.T., and added encryption on top of it. The court's response, that control does not require comprehension, is a workable rule with reach well beyond faceprints. Any company holding encrypted customer data on its own servers, under its own software, with the practical ability to rewrite, expose or delete it, now has a reasoned district court opinion saying that encryption is not an answer to a possession element. Whether other courts adopt that framing is an open question, and it is exactly the sort of holding that gets tested on appeal if the case reaches that point.

What this order does not signal is any view about how the case comes out. The court found genuine disputes of material fact in both directions on both elements of the identifier question, and expressly reserved the possession question for the surviving subclass. A reader looking for a prediction will not find one in the document, and we are not going to supply one.

How This Affects You

For Illinois residents who use Apple's Photos app, the practical effect of the decertification is narrower than it sounds. Nobody was removed from the case. People who were in the iCloud Subclass remain in the Local Device Class, which is defined simply by having had a photo of oneself placed into a People album on an Apple device since September 13, 2016. The class notice that will eventually go out has to be rewritten to reflect that change.

More broadly, the order is a reminder that BIPA questions turn on specifics a user cannot see from the outside: whether a system derives a representation of a face or merely cuts out a picture of one, whether that representation can be traced back to a person, and where the data ends up. Those are evidentiary questions that take discovery and expert review to answer, which is why reported BIPA decisions about consumer devices have split largely on whether the data left the device. Illinois residents weighing a privacy question that reaches past biometrics can start with our overview of the Illinois privacy framework more generally.

What Happens Next

The order denied the plaintiffs' pending Motion for Approval of Class Notice (Doc. 353) as moot and without prejudice, and directed the plaintiffs to modify the proposed notice to reflect the decertification of the iCloud Subclass and file an amended motion on or before October 14, 2026. The court tied its reserved ruling on collection and possession for the iCloud Faceprint Subclass to that notice process, so the sequence is notice first, then the reserved issue. Neither the summary judgment order nor the expert order sets a trial date, and we are not aware of a scheduling order in the public record that does.

This is general legal information, not legal advice. This article covers the Illinois Biometric Information Privacy Act and one pending federal case in the U.S. District Court for the Southern District of Illinois, with reference to Seventh Circuit and Ninth Circuit decisions. It was verified against the court's own orders on October 14, 2026, and the case is active, so the record can change. Consult a lawyer licensed in your jurisdiction about your specific situation.

Related articles

• Illinois biometric consent and penalty rules in detail
• State-by-state biometric statutes, from BIPA to Texas CUBI
• Where police and state rules on face recognition stand
• Illinois consumer privacy rights across the whole framework

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Last updated: 2026-10-14. This is a developing story; details verified as of 2026-10-14.

Frequently Asked Questions

Did a court rule that Apple's Photos app violates Illinois biometric privacy law?

No. On September 30, 2026 the court ruled only on summary judgment, which decides whether a case can go to trial, not who wins. It held that a reasonable jury could find Apple's faceprints are scans of face geometry capable of identifying a person, and that a jury could also find the opposite. Apple has not been found liable under BIPA and no damages have been awarded.

What is the difference between a 'face crop' and a 'faceprint' in this ruling?

A face crop is a smaller picture that Apple's software cuts out of the original photo after detecting where a face is. A faceprint is the 128-number vector that a convolutional neural network produces from that crop, which the software then compares against other faceprints to group photos. The court held that the crop is not biometric data because making it does not map the face's coordinates, while the vector is close enough to a scan of face geometry that a jury must decide.

What does it mean that the iCloud Subclass was decertified?

That subclass had been certified on the theory that face crops, user-entered labels and other metadata were synced to iCloud. Once the court held face crops are not biometric identifiers, the subclass had no legal theory left, so the court decertified it under Federal Rule of Civil Procedure 23(c)(1)(C). The order states that those people remain members of the Local Device Class, so nobody was dropped from the lawsuit.

Does BIPA cover photographs?

Section 10 of BIPA expressly excludes photographs from the list of biometric identifiers. The long-standing reading is that a face geometry scan extracted from a photograph can still be covered even though the photograph itself is not. This order did not reach that exclusion. It held on the record before it that a crop Apple's software made after locating a face is not a scan of face geometry, because making the crop does not map the face's coordinates, and that no evidence showed the information used to make it could identify a person.

Does it matter that Apple says the faceprints are end-to-end encrypted?

The court held that it does not answer the possession question. It reasoned that BIPA contains no encryption carveout, that section 15(e) treats data security as a separate obligation rather than a defense, and that control over data does not require the ability to read it. The court used an analogy to someone who owns an artifact covered in writing he cannot decipher but can still alter, publish or destroy.

Is on-device processing enough to keep BIPA from applying?

Not automatically, and the answer now turns on control. As the September 30 order reads G.T. v. Samsung Electronics America, Inc., 186 F.4th 470 (7th Cir. 2026), sections 15(a) and (b) require some degree of control over the biometric data, and solely providing the software that captures it is not control, so the face templates in that case, which stayed on the user's own phone, fell outside the statute. The court here distinguished that case because Apple's July 2024 Sync Update began sending faceprints to Apple's own servers.

When is the trial in Doe v. Apple?

Neither the September 30, 2026 summary judgment order nor the companion expert order sets a trial date. The next step the order itself specifies is an amended motion for approval of class notice, which the court directed the plaintiffs to file on or before October 14, 2026.

Does this ruling change biometric privacy law outside Illinois?

Not directly. It is a single federal district court decision applying an Illinois statute, and it binds nobody else. Its influence, if any, would come from other courts choosing to follow its reading of the words 'scan' and 'face geometry' and its conclusion that encryption does not defeat a possession element. Texas and Washington have dedicated biometric statutes enforced only by their attorneys general, though Washington's My Health My Data Act separately lets consumers sue over biometric data as consumer health data, and most comprehensive state privacy laws treat biometric data as sensitive without creating a private biometric claim.