$30B Facebook Privacy Suit Headed for Jury Trial

SAN FRANCISCO (CN) – A $30 billion class action claiming Facebook harvested the facial data of up to 6 million Illinois residents without consent must be decided by a jury, a federal judge ruled Monday.

Fighting to avoid liability in the multibillion-dollar lawsuit, Facebook argued that its technology doesn’t scan users’ facial geometry in a way that violates a 2008 Illinois privacy law.

On Monday, U.S. District Judge James Donato found only a jury can answer that question.

“A jury will need to resolve the genuine factual disputes surrounding facial scanning and the recognition technology,” Donato wrote in his 10-page ruling.

Lead plaintiff Nimesh Patel sued Facebook in 2015 in one of three consolidated class actions, claiming the social network harvested users’ facial data for its “Photo Tag Suggest” function, starting in 2011, without express permission from users.

Under the Illinois Biometric Information Privacy Act of 2008, companies must obtain consent before collecting or disclosing biometric data, such as retina scans, fingerprints, voiceprints, hand scans or facial geometry.

Facebook’s computer program expert, Dr. Matthew Turk, told the court in written opinions that Facebook merely analyzes pixels in face images and does not scan “any particular human-notable facial features.”

However, a computer program expert for the plaintiff class, Dr. Atif Hashimi, studied Facebook’s software code and concluded that the company “utilizes facial geometry to determine the location of facial landmarks including eyes, nose, mouth, chin and other unaligned face images.”

Beyond finding that such disputes must be resolved by a jury, Donato also refused to rule out the possibility that Facebook could have to pay up $30 billion in damages.

Attorneys for the plaintiffs estimate a class size of up to 6 million, with damages of $1,000 to $5,000 per class member, which could net an award of $6 billion to $30 billion.

Facebook argued that it should not be liable for any damages because it reasonably understood the Illinois privacy law as not applying to data harvested from photographs.

Donato rejected that argument, concluding that “ignorance of the law” has never been accepted as a valid excuse for breaking the law.

“The Court will not rule out at this stage the possibility that a reasonable mistake of law might foreclose exposure at the $5,000 level of damages,” the judge wrote.

Additionally, Donato refused to accept Facebook’s argument that the named plaintiffs lack evidence to prove that their facial data was harvested by the company.

“The record also shows that each of the named plaintiffs uploaded a sizable number of photographs and were tagged in other users’ photos,” Donato wrote. “A jury could reasonably find from this and other evidence that the named plaintiffs’ photographs were processed by Facebook’s facial recognition technology.”

The judge also scolded Facebook for continuing to cling to legal arguments that were rejected in prior rulings.

Facebook contended that the plaintiffs must show they suffered a real-world injury beyond the mere violation of the Illinois privacy law, and that because its servers are located outside of Illinois, it cannot be held liable for violating the state law.

Donato previously shot down both of those arguments when he denied Facebook’s motion to dismiss in February and certified a class of up to 6 million Illinois Facebook users in April.

The judge described Facebook’s refusal to accept his prior decisions as “troubling.”

Class attorney Paul Geller, of Robbins Geller Rudman & Dow in Boca Raton, Florida, said he was equally dismayed by Facebook rehashing previously settled legal disputes.

“Given the limited judicial resources we have in this country, it’s unfortunate that the court had to spend time denying the very same arguments that Facebook already made and already lost in earlier motions decided by the court,” Geller said.

A jury trial is set for July 9, but Facebook has asked for a stay pending the outcome of its appeal challenging the court’s decision to grant class certification. A hearing on the motion to stay is scheduled for June 14.

Geller said holding companies like Facebook accountable for violating users’ privacy is “imperative,” adding he is “confident the jury will make the right decisions” when the case goes to trial.

In an emailed statement, Facebook said: “We are reviewing the ruling. We continue to believe the case has no merit and will defend ourselves vigorously.”




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