Judge Certifies Class in Facebook Privacy Suit

Facebook CEO Mark Zuckerberg arrives on Capitol Hill  on Monday, April 9, to meet with Sen. Dianne Feinstein, D-Calif., the ranking member of the Senate Judiciary Committee. (AP Photo/J. Scott Applewhite)

SAN FRANCISCO (CN) — A class of up to 6 million Illinois residents can seek billions of dollars in damages from Facebook on claims that it harvested users’ facial data without consent, a federal judge ruled Monday.

Rejecting arguments that the location of Facebook’s servers shields it from liability, U.S. District Judge James Donato certified a class of Facebook users in Illinois who had their facial data analyzed and collected by Facebook after June 7, 2011.

Lead plaintiff Nimesh Patel claims Facebook 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 are required to obtain consent before collecting or disclosing biometric data, such as retina scans, fingerprints, voiceprints, hand scans or facial geometry.

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 the plaintiffs an award of $6 billion to $30 billion.

Facebook said in a statement that it is reviewing the ruling but believes that the case “has no merit.” It argued in legal briefs that its users suffered no actual harm and therefore lack standing to sue.

Judge Donato rejected that argument in February, finding the plaintiffs suffered “intangible harm” by losing control over their private data.

Facebook also claimed that it cannot be sued for violating an Illinois law because its servers are not in that state. Donato dismissed that argument, finding most elements of the lawsuit are “deeply rooted in Illinois.”

The judge rejected Facebook’s request to deny class certification based on differences among scanned and digital photographs. He found the social network offered no evidence of a substantial variation in how facial data is harvested from digital versus film-camera photos.

Donato also rejected Facebook’s concerns that class certification would enable the plaintiffs to seek an unreasonable amount of damages: potentially $30 billion.

“Substantial damages are not a reason to decline class certification because it is within the Court’s discretion to reduce a liquidated damages award to comport with due process at a later stage of the proceedings,” Donato wrote in his 15-page ruling.

The ruling comes less than a week after Facebook CEO Mark Zuckerberg spent nearly 10 hours over two days testifying before U.S. Congress and answering questions about the Cambridge Analytica scandal. He acknowledged that data firm Cambridge Analytica improperly obtained up to 87 million Facebook users’ private data and used the information to help political clients, including Donald Trump’s 2016 presidential campaign.

Class attorney Paul Gellar, with Robbins Geller Rudman & Dowd, said the Illinois Legislature was “prescient” in passing the Biometric Information Privacy Act to protect its citizens from corporations that harvest people’s biometric identifiers without consent.

“Recent events show that Facebook’s treatment of personal data is a real concern at the national level,” Gellar said in an email Monday. “Violation of the Illinois statute is a paradigm for class treatment, and we and our co-counsel are rolling up our sleeves and preparing for trial on behalf of the class.

During a hearing in March, Donato urged Facebook to consider settling the multibillion-dollar class action, saying: “Maybe it’s time for Facebook to look at all of its privacy practices, and not just those in the news.”

Menlo Park-based Facebook, co-founded in 2004 by Zuckerberg, claimed 1.4 billion daily users as of December 2017 and was valued at $407.3 billion as of May 2017, according to Facebook and Forbes.

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