Facebook Can’t Escape Facial Recognition Class Action Lawsuit

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Facebook can’t escape a class action lawsuit alleging it unlawfully collects non-users’ facial scans, according to a California federal judge.

Lead plaintiff Fredrick Gullen alleged in a class action lawsuit filed in 2015 that Facebook violated Illinois state privacy laws by storing facial scans of non-users.

Under the state’s Biometric Information Privacy Act (BIPA), alleged the plaintiff, Illinois residents’ private information, such as finger prints and facial scans are protected and Facebook should face steep fines under the law.

Facebook tried to dodge the class action lawsuit arguing that no harm had come to the plaintiffs and other Class Members. U.S. District Court Judge James Donato dismissed Facebook’s motion pointing out that the Illinois law provides state residents the right to refuse permission to collect biometric information like face scans. The judge noted in a previous hearing that violating a person’s right to say no as provided by a state law is enough for a class action lawsuit to proceed.

The judge also rejected Facebook’s argument that the social media giant does not actually store the facial scans of non-Facebook users.

“Facebook’s evidence goes to the merits of the case — whether Facebook in fact collects and stores non-users’ biometric information as contemplated by BIPA — and is properly resolved on a motion for summary judgment or at trial, not in the jurisdictional context,” noted the judge in the order.

Facebook users have also hit the company with a class action lawsuit over the collection of facial scans. The Facebook users say that they were never provided written notification about the collection and use of facial scans and never provided permission as required under BIPA.

According to the Facebook class action lawsuit, Facebook uses pictures uploaded by account holders to scan faces and collect unique facial scans. The plaintiffs say the facial scans reveal private information, including gender, age, race, and locations of both Facebook and non-Facebook users.

Gullen says that he became aware that his facial scan was stored by the social media company after a Facebook user was asked to “tag” his image in a friend’s photo. The plaintiff asserts that most Illinois residents are not aware of their rights under BIPA to protection of their private identifiable information.

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 non-Facebook users are represented by David P. Milian and Frank S. Hedin of Carey Rodriguez Milian Gonya 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 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 2: 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 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.