Facebook Wants Facial Recognition Class Action Tossed, Users Seek Class Cert.

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Facebook and the plaintiffs in a class action over the use of facial recognition both submitted motions Friday; the plaintiffs asked the court to certify their Class, while Facebook sought dismissal of the lawsuit.

The lead plaintiffs in a consolidated class action from 2015 allege that by collecting “face prints” from Illinois residents, Facebook violates that state’s Biometric Information Privacy Act (BIPA).

According to the Facebook class action, Facebook has technology that allows the tech giant to collect and store facial recognition data from the billions of photos that are uploaded to the social media giant each day.

The plaintiffs say the collection of this information without the consent of Illinois users is a violation of state law which protects the biometric information of its residents.

In its second motion to dismiss the class action, Facebook argued that because the facial recognition technology is located in servers outside of Illinois, BIPA does not apply.

“The facial recognition process occurs on Facebook’s servers, none of which is in Illinois. And the ‘templates’ that plaintiffs allege to be ‘biometric identifiers’ are created, updated and stored on those same servers,” stated Facebook in its motion to dismiss the lawsuit. “Neither Illinois law nor the federal Constitution permits the application of BIPA to that conduct.”

Facebook argues that imposing Illinois law in this case would conflict with federal law and other state laws as well.

“If applied here, BIPA would impose direct obligations on Facebook’s analysis of photos and storage of information outside Illinois, and it would displace the inconsistent policy of California, which has considered and rejected a law regulating facial-recognition technology,” noted the motion.

The plaintiffs sought to certify their proposed Class in a different motion. The plaintiffs seek to represent a Class of Illinois Facebook users whose face appeared in a photo uploaded to Facebook from Illinois between June 7, 2011 and the present. The plaintiffs also seek to represent a subclass of Illinois residents who have a “face template” stored with Facebook.

Facebook urged the court to dismiss the class action earlier arguing that the plaintiffs did not have standing to represent their proposed Class because they had not established that they suffered any harm from the use of the technology.

The plaintiffs are represented by attorneys Jay Edelson, Benjamin H. Richman, Alexander G. Tievsky, Rafey S. Balabanian and Lily Hough of Edelson PC, Shawn A. Williams, David W. Hall, Paul J. Geller, Stuart A. Davidson, Frank A. Richter, Christopher C. Martins, Mark Dearman, Travis E. Downs III and James E. Barz of Robbins Geller Rudman & Dowd LLP 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 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.