Facial data privacy suit against Meta advances to trial

SAN FRANCISCO (CN) — Non-Facebook users in Illinois can put Meta on trial over its use of facial recognition technology, but to win the case they must prove Meta scanned and mapped their faces in uploaded photos.

Last year, U.S. District Judge James Donato approved a historic $650 million settlement to resolve claims that Meta collected and stored users’ facial data without consent in violation of an Illinois privacy law.

While that case resolved the claims of Facebook users in Illinois, plaintiff Clayton Zellmer filed a separate suit on behalf of all non-Facebook users in the state who appeared in photos uploaded on the platform by others.

Meta, formerly known as Facebook, filed a motion for summary judgment last year, asking Judge Donato to rule in its favor and extinguish the lawsuit. The company argued it would be absurd to expect it to notify and obtain consent from potentially millions of people who appeared in photos but with whom it had no relationship.

In an 8-page ruling issued Thursday, Judge Donato sided with Meta on that point.

“It would be patently unreasonable to construe BIPA to mean that Facebook was required to provide notice to, and obtain consent from, non-users who were for all practical purposes total strangers to Facebook, and with whom Facebook had no relationship whatsoever,” Donato wrote, referring to Illinois’ Biometric Information Privacy Act.

However, the judge found Meta could still be held liable for violating another provision of the 2008 Illinois law that requires companies that take people’s biometric data to have written policies explaining how the data will be used and for how long it will be retained.

“Facebook did not state that it had such a policy,” Donato wrote in his ruling.

The company says that claim should also be thrown out because it never applied facial recognition technology to non-Facebook users that appeared in uploaded photos.

Meta insists it deleted face signatures if it determined there was no match to a user's existing face template. Lawyers dispute that assertion and say Facebook did store non-users’ facial data profiles for later use.

Zellmer’s lawyers say every step of Meta’s facial recognition technology and the resulting data, known as face signatures, constitute scans of facial geometry subject to the Illinois privacy law.

A Facebook engineer stated in written testimony that face signatures can’t be used to identify non-users because they only work with the platform’s existing face templates.

Zellmer’s lawyers cite the evidence showing that Meta created and compared Zellmer’s unique face signature to other faces in uploaded photos on at least four separate occasions.

“These are quintessential disputes of material facts that will require a trial to resolve,” Donato wrote.

The Illinois privacy law carries civil penalties of $1,000 for each negligent violation and $5,000 for each knowing violation. Those penalties can quickly add up with a large class of plaintiffs. The now-settled lawsuit involving Illinois Facebook users had an estimated class size of about 7 million people, which could have resulted in $47 billion in damages for Facebook.

Donato scheduled a status conference for May 26 to discuss next steps in the case.

Meta and Zellmer’s attorney, Albert Chang of Bottini & Bottini, did not return emails requesting comment by press time on Thursday.

Follow @NicholasIovino

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