Facebook, Plaintiffs Seek Summary Judgment in Biometric Data Class Action

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On March 16, 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.

The same day, the plaintiffs in the consolidated biometric data class action lawsuit (titled In re: Facebook Biometric Information Privacy Litigation) filed their own motion for summary judgment, asking a judge to end the case in their favor.

Both Facebook and the plaintiffs argue that there are no disputes over the facts at this stage of the litigation so the court would be able to make a determination as a matter of law.

The consolidated Facebook class action lawsuit and a similar case involving non-Facebook users (Gullen v. Facebook Inc.) are currently pending in California federal court. Both Facebook class action lawsuit accuse the social network of violating the Illinois Biometric Information Privacy Act by analyzing photos using facial-recognition technology without users’ informed written consent.

In their motion for summary judgment, the plaintiffs argued that Facebook “undisputedly” conducts scans of every face in photos that are uploaded to the site, and collects and stores biometric identities without prior consent.

The plaintiffs also assert that it is “undisputed” that Facebook failed to obtain written releases from them before it collected their biometric data. They claim Facebook’s data policy “contains … ambiguous language intended to avoid using the term ‘biometric data’” such that users cannot be meaningfully informed about the collection, storage and use of such information.

“No reasonable jury could find from these vague references to ‘information … put together … from your pictures’ in conjunction with Facebook’s admission that its users were meaningfully informed that Facebook collects, stores, and uses their biometric data,” the plaintiffs argue.

Facebook’s motions for summary judgment pointed to Rosenbach v. Six Flags Entertainment Corp., in which an Illinois state appeals court ruled in December that plaintiffs must allege they suffered actual harm to bring a claim under BIPA.

“Plaintiffs have proven no such injury: They did not testify that Facebook disclosed anything about them to third parties or that Facebook embarrassed them, upset them, or otherwise harmed their emotions, reputations or relationships,” Facebook argued. This is not the first time Facebook has argued that its facial recognition technology doesn’t cause actionable harm. Last fall, the social network filed a motion to dismiss the consolidated Facebook class action lawsuit on that basis.

The first Facebook biometric data class action lawsuits were filed in Illinois in 2015 before they were consolidated and transferred to California federal court.

The plaintiffs are represented by Jay Edelson, Rafey Balabanian and Benjamin H. Richman of Edelson PC; Shawn A. Williams, John H. George, Paul J. Geller, Stuart A. Davidson and Christopher C. Gold of Robbins Geller Rudman & Dowd LLP; and by Corban S. Rhodes and Joel H. Bernstein of Labaton Sucharow LLP. Gullen is represented by Frank S. Hedin and David P. Milian of Carey Rodriguez Milian Gonya LLP.

The Facebook Biometric Data Class Action Lawsuits are In re: Facebook Biometric Information Privacy Litigation, Case No. 3:15-cv-03746, in the U.S. District Court for the Northern District of California and Gullen v. Facebook Inc., Case No. 3:16-cv-00937, in the U.S. District Court for the Northern District of California.

UPDATE: 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 2: On April 16, 2018, Facebook users have been granted Class certification in a lawsuit claiming the company unlawfully collects facial recognition data.

UPDATE 3: 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.