SAN FRANCISCO (CN) – Insisting that millions of Facebook users lack standing to sue because they suffered no “real-world harm,” a Facebook lawyer urged the Ninth Circuit on Wednesday to strike down a $30 billion class action claiming facial data was harvested without user consent.
“The case should have been dismissed for lack of standing because the plaintiffs concede they have suffered no real-world harm as a result of Facebook’s analysis of their photos,” Facebook attorney Lauren Goldman, of Mayer Brown in New York, argued Wednesday.
Facebook seeks to overturn U.S. District Judge James Donato’s decisions to grant class certification and deny Facebook’s motion to dismiss. The Ninth Circuit granted Facebook’s emergency petition to stay the case pending appeal in May 2018, just six weeks before a jury trial was set to start.
The class action, first filed in 2015 and consolidated with two other cases, claims Facebook created and stored maps of users’ faces for its “Photo Tag Suggest” function without express permission and in violation a 2008 Illinois privacy law.
Goldman noted some named plaintiffs continued using the “Photo Tag Suggest” feature, which identifies users and their friends in Facebook photos, after the suit was filed. Lead plaintiff Nimesh Patel even called it “a nice feature” in deposition testimony.
“You can’t walk into federal court and say, ‘I really like this feature. I’m choosing not to opt out. I’m keeping this feature on, but give me $1,000,'” Goldman told the three-judge panel.
Representing the plaintiffs, attorney Aaron Lawson of Edelson PC in San Francisco said the named plaintiffs also testified they consider the collection of their facial data an invasion of privacy. He said class members were denied the right to stop Facebook from harvesting their facial data.
Facebook argues it disclosed the practice in its terms of service and complied with the law.
Citing the U.S. Supreme Court’s 2015 ruling in Spokeo v. Robins, Goldman insisted the plaintiffs must show they suffered actual harm beyond the mere violation of a law.
U.S. Circuit Judge Sandra Ikuta appeared open to that argument.
“Spokeo tells us to look at traditional common-law rights,” Ikuta said. “I don’t know that there’s a common law right to not have your face map stored.”
Lawson replied the Supreme Court also told courts in Spokeo to consider legislative intent.
“Legislatures have the ability to address new problems not addressed by common law,” Lawson said. “The Illinois Legislature recognized that common law wasn’t protecting this information, but it was such special information that it needed protection so it provided that protection.”
Lawson added that the Illinois Supreme Court’s recent ruling in Rosenbach v. Six Flags supports his clients’ position that the mere violation of the state’s Biometric Information Privacy Act (BIPA) is sufficient to establish standing.
Another issue before the court is whether a state privacy law should apply in this case because the photos were scanned and face templates stored on servers located outside of Illinois. Facebook maintains the law does not apply to conduct that occurred outside the state.
Additionally, Facebook insists class certification should be denied because the court cannot presume the plaintiffs joined Facebook or uploaded photos in Illinois just because they are Illinois residents. If those actions occurred out of state, then the state law would not apply and each plaintiff’s claim would have to examined on an individual basis, Goldman argued.
Sitting on the court by designation from the District of Ohio, U.S. District Judge Benita Pearson asked why Facebook decided to keep using its biometric facial analysis feature for users in Illinois despite the legal challenges.
Goldman answered Facebook does not believe the law applies to biometric data derived from photos or that it applies to software hosted on servers outside the state. Even if it applied, she said, Facebook also believes its disclosures comply with the law.
Pearson then questioned how Illinois residents can enforce their legal rights without suing Facebook as a class.
“Isn’t it the case that the statutory damages are so light that no one would pursue them individually,” Pearson asked, referring to the $1,000 to $5,000 in damages authorized under the law.
Goldman replied that “is not the question” courts must ask when deciding whether to grant or deny class certification. Rather, courts must determine if common legal questions exist for all class members and if litigating on a class-wide basis is the superior method for resolving the case, she said.
After about 50 minutes of debate, the panel took the arguments under submission.
U.S. Circuit Judge Ronald Gould joined Ikuta and Pearson on the panel.
Gould was appointed by Bill Clinton. Ikuta was appointed by George W. Bush, and Pearson was appointed by Barrack Obama.
The U.S. Chamber of Commerce is supporting Facebook’s appeal, and a coalition of civil rights groups, including the American Civil Liberties Union, filed an amicus brief supporting the plaintiffs’ position.