Facebook Class Action Challenges Facial Recognition Technology

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Facebook faces a new class action lawsuit alleging that the social media site captured and stored biometric information of non-users in violation of Illinois state law.

Plaintiff Clayton Zellmer argues that Facebook broke state law by implementing their facial recognition tagging system, which builds facial biometric profiles for users based on their uploaded and tagged photos.

Zellmer alleges that, despite never registering for a Facebook account, Facebook built a facial biometric profile for him based on photos uploaded by other users.

“When Facebook users uploaded photos of Plaintiff Zellmer, Facebook located Plaintiff Zellmer’s face in each such photo, scanned Plaintiff’s facial geometry, and created a unique face template corresponding to Plaintiff Zellmer,” the Facebook class action lawsuit claims.

Biometrics are unique physical characteristics that can be used to identify an individual. Common examples include facial recognition and fingerprint scanning. According to the Facebook class action lawsuit, biometrics are “unlike other unique identifiers that are used to access finances or other sensitive information.”

Unlike Social Security numbers, biometrics cannot be changed if they are compromised. Once an individual’s biometrics are compromised, they have no way to fix it and are at a heightened risk for identity theft, according to the Facebook class action.

In 2008, when Chicago was chosen by national corporations as a pilot testing site for new applications of biometric financial transactions, Illinois enacted the Biometric Information Privacy Act (BIPA). The BIPA forbids private entities from obtaining and storing an individual’s biometrics unless they are given written consent, including specifics about purpose and timing. Private entities must also publish public schedules about the retention and permanent destroying of stored biometric information.

In his Facebook class action lawsuit, Zellmer claims that Facebook violated the BIPA by creating and storing detailed face template from more than 1 billion users. Facebook allegedly creates the templates by using advanced facial recognition technology.

These facial templates are then used to make tagging suggestions when a user uploads a photo. According to a Facebook information page, the process of creating facial profiles is performed by “facial recognition software that uses an algorithm to calculate a unique number (‘template’) based on someone’s facial features, like the distance between the eyes, nose and ears.”

Zellmer’s lawsuit follows a tumultuous month full of legal action against Facebook. Among the recently filed suit is another biometric privacy class action moving through the court system. Other lawsuits address the alleged data mining scheme in connection with a Trump-affiliated data firm and the alleged call and text history collection.

The plaintiff seeks to represent Illinois residents who have never had a Facebook account whose faces were depicted in a photograph uploaded on the website and facial profile identified. The Facebook class action lawsuit seeks a trial by jury, damages, court costs, and attorneys’ fees.

Zellmer is represented by David Milian of Carey Rodriguez Milian Gonya LLP; and Albert Chang of Bottini & Bottini Inc.

The Facebook Facial Recognition Class Action Lawsuit is Zellmer v. Facebook Inc, Case No. 3:18-cv-01880, in the U.S. District Court for the Northern District of California.