Facebook Sued in Another Biometric Data Class Action

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On May 14, Facebook Inc. was hit with a second biometric data class action lawsuit, alleging Facebook’s photo-tagging feature, which is made possible by facial recognition technology, violates Illinois state law. According to the plaintiff of this Facebook class action lawsuit, certain state laws protect residents’ rights to control over their biometric data, which Facebook is allegedly violating.

Plaintiff Nimesh Patel of Chicago is a Facebook user who claims Facebook is in violation of the Illinois Biometric Information Privacy Act because the social media website collects users’ facial recognition data from uploaded Facebook photos without their written consent. The Facebook biometric data class action lawsuit further alleges that the social media giant failed to inform their users how long this particular information would be stored or used by Facebook.

According to the biometric data class action lawsuit, “Plaintiff brings this class action to put an end to Facebook’s latest privacy abuse – its collection, storage, and subsequent use of its users’ biometric identifiers and biometric information without informed consent, in direct contravention of the BIPA.” Facebook first introduced their “tag suggestion” feature in 2010, which would pop up when a user uploaded a photo to Facebook, suggesting that these newly uploaded photos be linked to a user’s profile with a tag.

Patel alleges the biometric data employed in the tag feature is prohibited under 2009 Illinois state laws, which states that if a company is in violation if it performs “scan of hand or face geometry” without users’ permission. According Illinois state law:

“Biometric information is any information captured, converted, stored or shared based on a person’s biometric identifier used to identify an individual. A ‘biometric identifier’ is any personal feature that is unique to an individual, including fingerprints, iris scans, DNA, ‘face geometry’ (also referred to herein as ‘faceprint’ or ‘facial features’) and voice, among others.”

However, this same state law specifically excludes biometric information extracted from other sources or items like photos as a biometric identifier category. In light of this, the plaintiff’s attorney has stated that whether or not Facebook’s biometric data obtained through facial recognition software is subject to state law is “statutory interpretation which has not yet been ruled upon,” according to the Facebook biometric data class action lawsuit.

Patel seeks to represent himself in this Facebook biometric data class action lawsuit, as well as a Class of all Facebook user who reside in the state of Illinois whose biometric data was collected for facial recognition purposes by the social media website.

Patel is not the only plaintiff or Illinois resident to file suit against Facebook. Just last month, plaintiff Carlo Licata filed a similar biometric data class action lawsuit against the social media company, claiming Facebook demonstrates a “brazen disregard for its users’ privacy rights,” by collecting users’ biometric information without consent.

Regarding Patel’s biometric data class action lawsuit, a Facebook company representative has stated the complaint lacks merit and that the social media site plans to fight.

The plaintiff is represented by James E. Barz, Frank Richter, Shawn A. Williams, David W. Hall, Paul J. Geller, Stuart A. Davidson, Mark Dearman, Christopher C. Martins and Travis E. Downs III of Robbins Geller Rudman & Dowd LLP.

The Facebook Biometric Data Class Action Lawsuit is Patel v. Facebook Inc., Case No. 1:15-cv-04265, in the U.S. District Court for the Northern District of Illinois.

UPDATE: On Mar. 9, 2016, Facebook urged the court to deny the plaintiff’s request for further discovery on grounds that their bid improperly comes at the “eleventh hour.”

UPDATE 2: On May 5, 2016, a California judge ruled that it is necessary to apply Illinois’Biometric Data Privacy Actto a class action lawsuit involving Facebook’s facial recognition and tagging features, even though Facebook users had agreed to a choice-of-law provision.

UPDATE 3: 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 4: 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.