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Facebook has been fighting off two separate class action lawsuits alleging that the social media giant unlawfully stores facial scans from uploaded photos, violating privacy laws.
On Friday, the social media giant tried to shake the claims, arguing that in both of the Facebook biometric class action lawsuits, the plaintiffs had failed to show that any “common harm” had been inflicted on a group of individuals because of Facebook’s practice of storing facial scans.
In 2015, non-Facebook user Frederick Gullen filed a class action lawsuit alleging that the company stored over one billion face scans, violating Illinois’ Biometric Information Privacy Act. The act prevents companies from collecting and storing facial scans of Illinois individuals unless they are informed in writing about the company’s facial scan collection policy.
Gullen, who is not a Facebook user but had his image uploaded to Facebook by a user, claims the storing of his facial scan violates BIPA because he was not informed of Facebook’s data-storing practices like Facebook users are. He seeks damages on behalf of himself and all non-Facebook users in Illinois who have had their images uploaded to Facebook.
In the second Facebook Facial Scan class action lawsuit filed in 2016, a group of Illinois individuals who use Facebook voluntarily also allege that Facebook violated Illinois’ Biometric Information Privacy Act, claiming that Facebook failed to properly inform them in writing that facial scans were being collected and stored, and failed to gain permission to collect and store the scans.
In both Facebook privacy class action lawsuits, Facebook has filed bids to oppose the establishment of a Class of similarly affected individuals, saying that in both cases, the Facebook facial scan class action lawsuits failed to established that the groups of Facebook users and non-users had “suffered identical harms” that qualified them to be considered as a Class.
On Friday, U.S. District Judge James Donato considered the two oppositions together, with the goal of discovering if the Facebook users and non-users qualified as a Class and if the facial scans had been stored by Facebook to begin with.
The social media company claims that the Facebook biometric face scans class action lawsuits fail to establish that Facebook violated BIPA. In their words, the “determination [of whether or not BIPA was violated] cannot be made without analyzing photos of each class member. And there is no case less fit for treatment than one requiring an analysis of millions of photos.”
According to Facebook, because the Facebook class action lawsuits fail to provide the data for each Class Member, they fail to prove a BIPA violation.
Additionally, Facebook argued that in both cases, the users and non-users failed to provide enough evidence to even establish individuals as a Class, saying that “many absent class members will not claim an injury beyond the collection of their alleged biometric data, and if others do make such claim, the form of alleged jury will vary tremendously.”
So, Facebook alleges that the two Facebook biometric privacy violation class action lawsuits fail to prove that the proposed Class Members — all Illinois Facebook non-users and Illinois Facebook users — are injured “in a way that is common to the class rather than individual to its members.”
In a March 29 hearing, Judge Donato will make a determination on both Class certifications.
Gullen is represented by Frank S. Hedin and David P. Milian of Carey Rodriguez Milian Gonya LLP.
The Facebook users 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 Lawsuits are In re: Facebook Biometric Information Privacy Litigation, Case No. 3:15-cv-03747-JD, and Gullen v. Facebook Inc., Case No. 3:16-cv-00937, both in the U.S. District Court for the Northern District of California.
UPDATE: On March 2, 2018, Facebook can’t escape Gullen’s class action lawsuit alleging it unlawfully collects non-users’ facial scans, according to a California federal judge.
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 3, 2018, a federal judge tossed Gullen’s proposed class action lawsuit against Facebook alleging their biometric policy violates Illinois’ privacy laws.
UPDATE 4: On April 16, 2018, Facebook users have been granted Class certification in a lawsuit claiming the company unlawfully collects facial recognition data.
UPDATE 5: 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.
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