Judge Dismisses Facebook Non-Users’ Biometric Privacy Class Action

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A federal judge recently tossed a proposed class action lawsuit against Facebook alleging their biometric policy violates Illinois’ privacy laws.

U.S. District Judge James Donato granted Facebook’s dismissal request of plaintiff Frederick Gullen’s class action lawsuit.

Judge Donato stated that the claims in the Facebook class action are based on a singular photo of the plaintiff uploaded by someone else on a page that wasn’t scanned.

Gullen’s class action lawsuit accused Facebook of analyzing photographs and creating biometric profiles of non-users without consent. The Facebook class action, initially filed in 2015, alleges that Facebook created and stored biometric information of people who did not have profiles on the website and therefore could not consent to the storage of their information. Facebook’s tagging technology allegedly creates biometric profiles for both users and non-users in order to identify them in uploaded photos.

Gullen’s information was allegedly stored by Facebook after an organization’s page posted a photo of him. Gullen argued that the practice was in violation of the Illinois Biometric Information Privacy Act because biometric information was stored without express consent. However, Facebook argued that they do not scan organization pages, so his information was not stored.

According to Facebook’s motion for summary judgement, the photo posted of Gullen was published to the Facebook page for “Glenview Patch,” a local news site for Glenview, Illinois. According to the Glenview Patch website, a Fred Gullen was part superintendent in Glenview for 22 years before retiring in 2012.

In his ruling on Tuesday, Judge Donato said that records show that Facebook does not use facial recognition technology on photos uploaded by pages for organizations.

Facebook submitted an affirmative declaration from one of its software engineers as evidence that Gullen’s information was not scanned or stored. Gullen sought permission to do a further deposition with the engineer who provided the evidence, but the judge said that Facebook had already told Gullen in a prior interview that it didn’t scan photographs uploaded to organizations.

“This state of the record is enough to terminate Gullen’s claims, and his suggestion that summary judgement should be deferred to allow for more discovery is unavailing,” Judge Donato stated.

“Gullen had ample opportunity to conduct discovery on organizational pages, and he has not shown that the discovery he now seeks was in any way unavailable to him in the normal course of litigation,” the judge added.

He also argued that the record didn’t indicate that the engineer said anything inconsistent or untruthful about Facebook’s practices.

Judge Donato’s ruling follows recent summary judgement bids by both the plaintiffs and the defendant. On March 16, Facebook filed for summary judgement in a bid to end two class action lawsuits including Gullen’s complaint. In the same day, the plaintiffs filed for their own bid for summary judgement, urging the judge to end the case in their favor.

Gullen is represented by Frank S. Hedin and David P. Milian of Carey Rodriguez Milian Gonya LLP.

The Facebook Biometric Privacy Class Action Lawsuit is Gullen v. Facebook Inc., Case No. 3:16­-cv­00937, in the U.S. District Court for the Northern District of California.