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Class Action Lawsuit Against Facebook Over Facial Recognition Moves Forward

By Christopher Coble, Esq. on April 19, 2018 12:59 PM

Not everyone loves Facebook's suggestions when it comes to tagging people in photos. On top of that, those suggestions may be illegal. That's what we learned from a recent ruling in a class action lawsuit filed against Facebook over its use of facial recognition.

A federal judge in California allowed the lawsuit to proceed, ruling that Facebook may have violated an Illinois law limiting the collection of biometric information, but limited the potential class of plaintiffs at the same time. Here's a look.

Photo Tag Lawsuit

Nimesh Patel filed the lawsuit against Facebook, claiming the company illegally harvested users' facial data for its "Photo Tag Suggest" function, beginning in 2011. But the Illinois Biometric Information Privacy Act, passed in 2008, prohibits private companies from capturing or collecting a person's biometric identifier or biometric information without notification and consent.

According to attorneys for the plaintiffs, the potential class of affected Facebook users in Illinois could be up to 6 million. And with estimated damages of $1,000 to $5,000 per person, Facebook could be facing anywhere from $6 to $30 billion in damages.

Class Judgment

Facebook battled the lawsuit on several fronts. The company argued:

  • Its users suffered no actual harm and therefore lack standing to sue;
  • It cannot be sued for violating an Illinois law because its servers (and therefore the biometric data) are not located in the state;
  • The class could not be certified due to differences among scanned and digital photographs, and the way biometric data is harvested from each; and
  • That class certification would enable the plaintiffs to seek an unreasonable amount of damages.

U.S. District Judge James Donato rejected all those claims, finding that the plaintiffs suffered "intangible harm" by losing control over their private data, most elements of the lawsuit are "deeply rooted in Illinois," Facebook failed to offer evidence of a substantial variation in how facial data is harvested from digital versus film-camera photos, and that a potential judgment of $30 billion is "not a reason to decline class certification."

Donato, however, did reduce the potential number of plaintiffs. Patel's attorneys argued the plaintiffs should include all Illinois residents with an uploaded Facebook photo since 2011. Donato ruled that group was "too amorphous and potentially over-inclusive to be certified," and instead limited the class to Facebook users in Illinois who had their facial data analyzed and collected by Facebook after June 7, 2011.

That number is still substantial, and Donato had earlier urged the company to settle the Illinois claims. "Maybe it's time for Facebook to look at all of its privacy practices," Donato said during a hearing in March, "and not just those in the news."

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