Judge OKs Class Notice Plan in Facebook Privacy Suit

SAN FRANCISCO (CN) – A federal judge on Monday refused to delay notifying up to 6 million Facebook users about a $30 billion privacy suit against the social network unless it can prove completing the task in nine days would be "literally impossible."

"I want to see a detailed explanation from the engineer who knows this who says it's literally impossible to post a jewel notice with less than two weeks notice," U.S. District Judge James Donato said in court Monday.

Lawyers for a class of up to 6 million Facebook users in Illinois asked the court to make the social network notify the class through emails, newsfeed posts, and "jewel" notifications, or Facebook alerts.

A Facebook lawyer argued requiring both newsfeed posts and jewel notices would be redundant and unnecessary. Donato disagreed.

"They may be duplicative, but our goal here is to give notice, and it's reasonable in my view to do that," Donato said.

The judge is trying to streamline class notification and deciding pretrial evidentiary motions before a jury trial set to start on July 9.

Facebook is accused of collecting and storing the facial geometry of users for its "Photo Tag Suggest" function, launched in 2011, without permission from users and in violation of a 2008 Illinois privacy law.

On Monday, both sides argued over which users should be notified about the lawsuit. Donato said a person who uploaded photos while visiting Illinois or stopping at O'Hare International Airport in Chicago shouldn't necessarily be included in the class or informed about the suit.

"Let's be common sensical about this," Donato said. "It's an Illinois state law for Illinois state people. If you're passing through O'Hare or Peoria, you're not an Illinois person."

Facebook can figure out how long its users spent in Illinois based on IP addresses and other data used to pinpoint users' locations for advertising purposes, according to Facebook's lawyer Archis Parasharami, of Mayer Brown in Washington.

Plaintiffs' attorney Shawn Williams, of Robbins Geller Rudman & Dowd in San Francisco, suggested that users who stayed in Illinois for at least one month should be notified about the suit. Parasharami, in turn, asked for a six-month residency requirement.

Both sides compromised on notifying users who lived in Illinois for at least 60 consecutive days starting on June 7, 2011, when Facebook launched its "Photo Tag Suggest" function.

Donato emphasizes that this requirement is only for class notification, not guaranteeing those individuals the right to receive money from Facebook if the social network is found liable.

"This is notice. This is not writing checks," Donato said. "It's okay to cast a wider net for notice."

Establishing eligibility for claims for compensation will be handled at a later stage, the judge added.

Donato ordered Facebook to send out class notifications by May 30, a timeline Facebook described as potentially impossible to meet.

The judge directed Facebook to submit declarations by engineers under penalty of perjury by 5 p.m. on Tuesday, May 22, specifically outlining why it would be technically impossible to meet the deadline.

"I find it hard to believe that Facebok can't do a jewel notice with less than two weeks notice," Donato said. "I'll need to see some proof."

Both sides are expected back in court on June 14 to argue Facebook’s motion to stay the case pending the outcome its appeal challenging Donato's decision to grant class certification in April. A pretrial conference is scheduled for June 21.

Last week, Donato refused to rule out the possibility that Facebook could have to pay up to $30 billion in damages if a jury finds it violated the Illinois Biometric Information Privacy Act by harvesting users' facial data without consent.

Follow @NicholasIovino

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