Judge Says Ill. Law Applies to Facebook Biometric Class Action

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

A California judge has ruled that it is necessary to apply Illinois’ Biometric Data Privacy Act to a class action lawsuit involving Facebook’s facial recognition and tagging features, even though Facebook users had agreed to a choice-of-law provision.

The facial recognition class action lawsuit asserts that Facebook unlawfully collected and stored biometric data derived from users’ faces in violation of the Illinois Biometric Data Privacy Act.

Several similar Facebook class action lawsuits have been filed and they were transferred to California federal court and consolidated as In re: Facebook Biometric Information Privacy Litigation.

The plaintiffs allege that Facebook failed to properly inform them in writing that their biometric identifiers were being collected and stored as well as failed to get permission from Facebook users to collect, capture or otherwise obtain their biometric identifiers.

Facebook filed a motion to dismiss the biometric data class action lawsuit and sought summary judgment, hoping to put an end to the litigation. The social network giant argued that the plaintiffs failed to state a claim under the Illinois BIPA, and that the California choice-of-law provision in its user agreement prevents Facebook users from suing on an Illinois statute. The plaintiffs disagree with Facebook’s assertions.

Last week, U.S. District Judge James Donato denied Facebook’s motion for summary judgment, finding that BIPA was implemented in Illinois as a measure to protect citizens’ rights to privacy with regard to their personal biometric data.

Judge Donato sided with Facebook regarding the plaintiffs’ acceptance of the choice-of-law provision, but found that applying California law would result in injury to Illinois citizens. He found that “the plain language of BIPA indisputably evinces a fundamental privacy policy of Illinois” and that California has no equivalent law.

“It is equally undeniable that enforcing the contractual choice of California law would be contrary to this policy in the starkest way possible,” Judge Donato writes. “Facebook tries to downplay the conflict as merely a loss of a claim.”

“But if California law is applied, the Illinois policy of protecting its citizens’ privacy interests in their biometric data, especially in the context of dealing with ‘major national corporations’ like Facebook, would be written out of existence,” the judge continues. “That is the essence of a choice-of-law conflict.”

Judge Donato concludes that Illinois has a greater interest in the outcome of the BIPA dispute and that the state would “suffer a complete negation” of the BIPA protections if California law is applied. California, on the other hand, will not suffer much if BIPA is applied. He finds that California’s interests in general contract enforcement do not outweigh Illinois’ specific interests in biometric data privacy.

The plaintiffs are represented by Paul Jeffrey Geller, Frank Anthony Richter, Mark Dearman, Shawn A. Williams, Stuart Andrew Davidson and James E Barz of Robbins Geller Rudman & Dowd LLP, Jay Edelson, Rafey S. Balabanian, J. Dominick Larry and Alexander Nguyen of Edelson PC, and Corban S. Rhodes, Joel H. Bernstein and Ross M. Kamhi of Labaton Sucharow LLP.

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

UPDATE: On Aug. 25, 2016, in its latest motion to dismiss the case, Facebook argued that users have not established how Facebook’s use of their biometric data lowers the value of users’ facial recognition data.

UPDATE 2: On Sept. 28, 2017, Facebook filed a motion for dismissal in a California federal court, arguing that the plaintiffs suing Facebook have failed to allege any actual harm resulted from the company’s use of facial recognition technology.

UPDATE 3: On Jan. 26, 2018, Facebook tried to shake claims in two Facebook biometric class action lawsuits. They argued that the plaintiffs failed to show that any “common harm” had been inflicted on a group of individuals because of Facebook’s practice of storing facial scans.

UPDATE 4: On March 16, 2018, Facebook Inc. filed motions for summary judgment in a bid to end two putative class action lawsuits accusing the social network of unlawfully using facial-recognition technology to collect users’ biometric data without their consent.

UPDATE 5: On April 16, 2018, Facebook users have been granted Class certification in a lawsuit claiming the company unlawfully collects facial recognition data.

UPDATE 6: 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.