Facebook Users Granted Class Cert. in Facial Recognition Lawsuit

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Facebook users have been granted Class certification in a lawsuit claiming the company unlawfully collects facial recognition data.

Facebook users Nimesh Patel, Adam Pezen, and Carlo Licata filed a class action lawsuit claiming that the social media platform’s feature of “suggested tags” in photos represents a violation of Illinois’ Biometric Information Privacy Act.

This week, a San Fransisco judge granted the three users’ bid for Class certification of all Facebook users who had facial recognition data collected by the social media giant.

Facebook countered Patel and others’ argument by saying that the users failed to provide a simple, unified way of determining what users had been impacted by Facebook’s practice of collecting facial recognition data.

According to Facebook, the consumers have proven no injury — “they did not testify that Facebook disclosed anything about them to third parties or that Facebook embarrassed them, upset them, or otherwise harmed their emotions, reputations, or relationships.”

U.S. District Judge James Donato, who granted Class certification in the Facebook face scan data class action lawsuit, determined that the Biometric Information Privacy Act does not require individuals to show that they had been injured by a violation, so the users’ requested Class certification was valid.

According to Judge Donato, “[BIPA’s] intent cannot be squared with a construction of ‘aggrieved’ that requires some other ‘actual’ injury,” when the lack of notice given to Facebook users, and thus lack of knowledge of injury, is the exact type of harm that the Illinois intends to prevent.

Judge Donato has defined the Class of users to be all Facebook users for whom Facebook had created and stored facial recognition algorithms since June 7, 2011, the date that Facebook introduced “Tag Suggestions.”

The Illinois Biometric Information Privacy Law is one of the most stringent laws of its kind, setting new parameters for how facial scans are regarded in relationship to privacy law. Thus, this Facebook class action lawsuit is seen as noteworthy because it will effectively test the boundaries of this law.

In a separate but related case Judge Donato stated that not only Facebook users qualified for Class certification, but non Facebook-users who had had their facial image scan data collected by Facebook should also qualify for Class certification. He stated that arguably, the two groups experienced a similar alleged harm.

The technology in question in both of these lawsuits is Facebook’s suggested tags feature, which was introduced in 2011. This software allegedly uses a multi-step process to identify a face in a photograph, and suggests that a Facebook user “tag” the identified person in the photograph. Facebook then allegedly stores this data as algorithms, and uses it to identify future photos with a high level of accuracy.

The Facebook users are represented by Alexander G. Tievsky, Jay Edelson, Rafey Balabanian and Benjamin H. Richman of Edelson PC, Shawn A. Williams; John H. George, Paul J. Geller, Stuart A. Davidson and Christopher C. Gold of Robbins Geller Rudman & Dowd LLP; and Corban S. Rhodes and Joel H. Bernstein of Labaton Sucharow LLP.

The Facebook Face Scan Class Action Lawsuit is In re: Facebook Biometric Information Privacy Litigation, Case No. 3:15-cv-03747, in the U.S. District Court for the Northern District of California.

UPDATE: On Jan. 21, 2020, the Supreme Court decided not to hear Facebook’s appeal in a class action lawsuit filed by Facebook users who claim that the social media giant violated Illinois privacy laws by using facial recognition software.

UPDATE 2: On Jan. 30, 2020, Facebook reached a $550 million settlement with consumers who claim that the social media giant violated Illinois’ Biometric Information Privacy Act by using facial recognition on users’ photos without their consent.