Facebook Insists Facial Recognition Tech Doesn’t Cause Actionable Harm

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Facebook is seeking dismissal of claims that it violated persons’ biometric privacy rights by creating and storing facial recognition templates.

The company filed a motion for dismissal last Thursday 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.

According to Facebook, the plaintiffs must allege more than just a violation of privacy rights. To have the standing required to bring their claims in federal court, they must allege some sort of concrete harm, the company says. The current Facebook biometric privacy litigation is a consolidation of three separate class actions.

In plaintiff Frederick Gullen’s action filed in 2015, Gullen alleged Facebook’s collection and storing of this information violated the Illinois Biometric Information Act. This law prohibits companies from collecting and storing “face prints” without first informing the subject of the face print about the purpose of the collection and how long the data will be stored, then getting the subject’s permission to collect their biometric data.

The question of standing has been a hot-button issue in this and many other consumer class action lawsuits following the Supreme Court’s May 2016 decision in Spokeo v. Robins. The court held then that in order to establish standing, a plaintiff has to allege the defendant caused them an injury that is concrete and particularized.

The court’s opinion, written by Justice Alito, notes that a “concrete” injury doesn’t necessarily have to be a “tangible” one. At the same time, merely alleging a technical violation of a statutory provision may not be enough to establish standing.

Both plaintiffs’ and defendants’ attorneys  have called Spokeo a win for their respective clients.

In its current motion for dismissal, Facebook is now trying to leverage what it says is a key difference between Spokeo and the plaintiffs’ current biometric privacy class action lawsuit. In Spokeo, the Ninth Circuit eventually found that the plaintiff had indeed alleged a concrete and particularized harm because the erroneous information published by Spokeo harmed his job prospects.

The plaintiffs suing Facebook can’t allege a similar injury, Facebook argues, because the company did not disseminate the data it collected. Plaintiffs claim the collection itself is a violation of their biometric privacy rights, but Facebook says they make no allegations that the data collection had any harmful effect on them.

“According to their own complaints, any data that Facebook obtained about them is sitting safely on its servers,” Facebook says.

The plaintiffs are represented by attorneys Jay Edelson, Rafey S. Balabanian and J. Dominick Larry of Edelson PC, Frank S. Hedin of Carey Rodriguez Milian Gonya LLP, Corban S. Rhodes, Joel H. Bernstein and Ross M. Kamhi of Labaton Sucharow LLP, Francis A. Bottini Jr., Albert Y. Chang and Yury A. Kolesnikov of Bottini & Bottini Inc., and Shawn A. Williams, Stuart A. Davidson, Mark Dearman, Travis E. Downs III, Paul J. Geller, David W. Hall, Frank A. Richter, Christopher C. Martins and James E. Barz of Robbins Geller Rudman & Dowd 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 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 2: 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 3: On April 16, 2018, Facebook users have been granted Class certification in a lawsuit claiming the company unlawfully collects facial recognition data.

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.