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Tuesday, June 25, 2024 | Back issues
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Ninth Circuit upholds Meta’s victory over privacy claims from plaintiffs who don’t use Facebook

Meta prevailed against a group of non-Facebook users' appellate claims that it violated state law by collecting data from their faces.

SAN FRANCISCO (CN) — Facebook’s parent company on Monday won an appeal of claims that it violated Illinois state law by analyzing the faces of people who don't have profiles on the platform to create “face signatures" for them.

A Ninth Circuit panel affirmed that an Illinois federal court properly entered summary judgment in favor of Meta Platforms Inc. in a class claim led by Clayton Zellmer, who says the social media giant mined photos in which he and other non-Facebook users appeared.

He says this violated a state privacy statute aimed at protecting biometric identifiers. But the argument wasn't enough to sway a three-judge panel of the San Francisco-based appellate court.

"Zellmer never explained how he or any of the proposed class members are harmed by violations of this general duty in a 'concrete and particularized' way," U.S. Circuit Judge Ryan Nelson, a Trump appointee, wrote in the panel's 20-page order.

In fact, the panel said, he couldn't have done so because of legal precedent has determined that face signatures are not biometric identifiers under Illinois law.

Zellmer, who filed the federal suit in Illinois after a federal judge approved a historic $650 million settlement to resolve similar claims from Facebook users in Illinois, he claims he and the other plaintiffs don't use Facebook — but friends of his uploaded photos of him to the website, leading to his information being stored without his written consent.

While the panel affirmed the dismissal of Zellmer's suit for lack of standing, it diverged from the lower court as to why. The circuit rejected the lower court's finding that there was a factual dispute over whether face signatures can identify a person and said Illinois privacy law applies to everyone whose information was held by Facebook.

The panel then turned to whether there was a material dispute of fact as to whether Meta violated the state laws. And while there was no dispute that Facebook made a face signature for Zellmer, the court said, his argument effectively would mean that every retina, iris or fingerprint scan is a biometric identifier, and therefore tracking it violates the Illinois Biometric Information Privacy Act.

One of the toughest laws in the country concerning the protection of biometric data, the Illinois privacy law carries civil penalties of $1,000 for each negligent violation and $5,000 for each knowing violation.

Regarding Zellmer's claim that Facebook doesn't provide a retention schedule nor guidelines for permanently destroying the face data, the panel said that the Seventh Circuit had already concluded that the duty Zellmer identified is owed not to any particular person, but to the public generally — and that he did not meet his burden of proof.

Meta has maintained that it could not be expected to notify and obtain consent from the millions of people who appear in photos on the site, but with whom it has no relationship. The company insists it deleted face signatures if it determined there was no match to a user.

Meta’s attorney declined to comment on the opinion. The appellants’ attorneys did not immediately respond to a request for comment.

Joining Nelson on the panel were U.S. Circuit Judges Danielle J. Forrest and Gabriel P. Sanchez, Trump and Biden appointees, respectively.

Follow @nhanson_reports
Categories / Appeals, Technology

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