A three-judge panel of the US Court of Appeals for the Seventh Circuit unanimously upheld Wednesday a lower court’s decision to reject biometric software company Onfido Inc.’s attempt to send facial data privacy claims to arbitration.

The plaintiff in the case registered his identity to become a verified user on the application OfferUp, an online marketplace. Onfido, Inc. provided the technology for the verification process. The plaintiff sued Onfido under the Illinois Biometric Information Privacy Act, alleging that OfferUp’s TruYou feature used facial recognition technology to collect his biometric information without his consent.

On Wednesday, the appeals court panel addressed the issue of whether the case belonged in court or arbitration. Onfido asserted that the case belonged in arbitration because of an arbitration clause in the terms of service contract between the the plaintiff and OfferUp, even though the Onfido was not a party to that contract. Onfido argued that it could enforce the clause under three separate theories: third-party beneficiary, agency, and equitable estoppel.

The lower court rejected these arguments, and the appeals court affirmed that decision. The court found that there was nothing in the terms of service that designated Onfido as a third-party beneficiary of the contract. There was also no evidence that the plaintiff was an agent of OfferUp, or that he should be stopped from contesting the enforceability of the arbitration provision.

The panel also addressed a choice-of-law question, because the terms of service had a Washington choice-of-law provision, even though the forum state was Illinois. The panel affirmed the lower court’s holding that, because Onfido failed to establish there was an outcome determinative difference between the law of the two states, the law of Illinois as the forum state should be applied.

Because of this, the appeals court denied Onfido’s motion to compel individual arbitration.