SAN FRANCISCO (CN) - A federal judge proclaimed Thursday that the nation's Founding Fathers have little insight to offer on whether the Constitution allows people to sue Facebook for collecting their biometric facial data without consent.
"A couple of justices are focused on what happened 200 years ago," U.S. District Judge James Donato said during a hearing on a motion to dismiss a privacy class action against Facebook.
"What opinion does George Washington have on this? There are historical realties that simply don't overlap."
Donato was responding to an argument from Facebook attorney Lauren Goldman, who said the Supreme Court's recent decision in Spokeo v. Robins made clear that plaintiffs cannot sue unless they show they suffered a concrete injury, as the Founding Fathers intended in Article III of the Constitution.
The Spokeo ruling, issued in May, held that individuals lack standing to sue entities such as the internet search engine Spokeo, which posted inaccurate information about a Virginia man in violation of the Fair Credit Reporting Act, unless they suffer actual harm as a result of a statutory violation.
"Spokeo impresses me for its utter lack of novelty," Judge Donato said Thursday. "These are all Article III standing tests. It's old law just restated, nothing novel about it."
Facebook sought to dismiss three consolidated class actions brought by Facebook users in Illinois, and another class action from a non-Facebook user in California. The lawsuits claim the social networks' analyzing and storing of facial data for its "Photo Tag Suggest" function violates the Illinois Biometric Information Privacy Act (BIPA).
The Illinois law, enacted in 2008, prohibits collecting or disclosing biometric data, such as an iris or retina scan, fingerprint, voiceprint, hand scan or facial geometry, without a person's permission.
Donato in May refused to dismiss the class action or grant Facebook's motion for summary judgment , finding the facial geometry of individuals derived from photo scans is a piece of biometric data protected under the Illinois law.
During the Thursday hearing, class attorney Rafey Balabanian told the judge that Spokeo did not create "some rule" that a statutory violation requires a "real world injury" or "economic harm" in order to establish standing.
"I'm with you on that," Donato said. "You can have an intangible injury."
But Goldman countered that plaintiffs must show they suffered some injury to press their claims in federal court.
"It's not enough to say my privacy has been violated," Goldman said. "You have to say how it was violated. What information of yours was shared with the world and how were you harmed by that?"
Goldman argued that because Facebook never disclosed the biometric facial data to the outside world, no concrete injury could be alleged.
Balabanian replied that his clients have a right to control their biometric information, as codified by the Illinois privacy law.
"A person's identity is a property right," he said.
Facebook's failure to notify users or seek permission when it started harvesting biometric facial data in 2010 clearly violates the Illinois privacy law, Balabanian said.
Although Donato indicated that he believes people can suffer an injury from the unpermitted collection of biometric facial data, he struggled to get Balabanian to define precisely what that injury was.
The judge said the plaintiffs' consolidated complaint emphasizes loss of valuable information, rather than focusing on the injury or injuries suffered from an unpermitted invasion of privacy. Donato said he does not believe biometric data is necessarily valuable.
Balabanian returned to his argument that the Illinois Legislature created a law specifically to protect people's privacy and to ensure their biometric data would not be harvested without their consent.
"State legislatures do not grant the jurisdiction of this court," Donato replied. "The mere fact that the Legislature said 'X' in Illinois doesn't answer the Article III question. It can't just be said that if a state law was violated, you have a concrete injury."
Donato said that if he does rule for Facebook's motion to dismiss for lack of jurisdiction, he will likely remand two of the class actions, which originated in state court in Illinois and California, back to those state jurisdictions.
In the meantime, he refused to stay further action in the lawsuits and asked both parties to continue gathering evidence in preparation for a jury trial.
Balabanian is with Edelson PC in San Francisco.
Goldman is with Mayer Brown in New York City.