Facebook Can’t Duck Class Action Over Facial Data

SAN FRANCISCO (CN) — Facebook can’t duck claims that it violated users’ privacy by analyzing and storing data on facial features from uploaded photos, a federal judge has ruled.
Three plaintiffs from the Chicago area — Nimash Patel, Adam Pezen and Carlo Licata — filed separate suits against the social media giant in Illinois last year. The cases were combined and transferred to the Northern District of California this past summer.
The three men say Facebook’s “Photo Tag Suggest” function, which uses facial recognition software to analyze and collect facial geometry data, violates 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.
In a May 5 ruling, U.S. District Judge James Donato refused to dismiss the class action, finding the plaintiffs plausibly alleged that Facebook had analyzed and stored their facial data without their blessing.
“The court accepts as true plaintiffs’ allegations that Facbeook’s face recognition technology involves a scan of face geometry that was done without plaintiffs’ consent,” Donato wrote in his 22-page ruling.
Facebook had argued the Illinois law specifically excluded photos, along with writing samples, signatures and physical descriptors like height and weight, as items that do not qualify as biometric information.
However, the judge found the facial geometry of individuals derived from photo scans is considered a piece of biometric data under BIPA.
The judge cited a 2015 Northern District of Illinois ruling, Norberg v. Shutterfly, which denied a motion to dismiss based on the same argument that BIPA excludes biometric identifiers obtained from photographs.
Donato also rejected Facebook’s request to have California law, rather than Illinois law, govern the class action claims.
The judge found that all three men had agreed to Facebook’s terms of use, which require claims against it be governed by California law. However, enforcing that provision would hamper Illinois’ interests in protecting its citizens’ privacy rights, Donato concluded.
Factors for deciding choice of law weighed more heavily toward Illinois, in part because California lacks a similar privacy law, Donato found.
Attorneys Paul Gellar and Shawn Williams of Robins Gellar Rudman & Dowd in San Francisco and Boca Raton, Florida, did not immediately return phone calls seeking comment Thursday morning.
Facebook did not immediately respond to an emailed request for comment Thursday.
. Android phone users filed a similar lawsuit in March, accusing Google of extracting biometric data from pictures uploaded to its cloud-based photo service.

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