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<b><i>Online Extra:</b></i> Facebook Readies for Battle Over Biometrics

By Ross Todd
August 31, 2015

Facebook Inc. will have home court advantage in a trio of privacy class actions claiming the company violated an Illinois law governing the collection of biometric data with its 'tag suggestion' feature.

The suits, which were filed in Illinois courts this spring by high-profile plaintiffs firms, claim that Facebook's use of facial recognition technology violates a 2008 Illinois law regulating the way companies use technologies that analyze individuals' unique physical characteristics to identify and track them. In late July a federal judge in Chicago transferred the suits to the Northern District of California where this week they began appearing on the docket of U.S. Magistrate Judge Maria-Elena James.

Lawyers at Edelson PC, Labaton Sucharow, and Robbins Geller Rudman & Dowd sued Facebook on behalf of the site's Illinois users. Each suit claims Facebook violated the state's Biometric Information Privacy Act (BIPA), which makes it illegal for a company to collect or access customers' biometric identifiers without first informing them in writing about what's being collected, how it's being used, and how long it's being stored. The law, which also requires companies to get written release from those whose data is being collecting, carries statutory damages of $1,000 for negligent violations, and $5,000 for those that are 'intentional and reckless.'

Facebook users have long been able to identify their friends in photos uploaded to the social networking site, or 'tag' them as it's called in Facebook parlance. But plaintiffs claim that the so-called 'tag suggestion' feature, which was launched on the site in 2010, uses sophisticated facial recognition software to automatically match pictures with names in a way that violates the BIPA.

'Unfortunately, Facebook actively conceals from its users that its Tag Suggestion feature actually uses proprietary facial recognition software to scan their uploaded photographs, locate their faces, extract unique biometric identifiers associated with their faces, and determine who they are,”wrote Edelson's Jay Edelson'in the first suit filed in the Circuit Court of Cook County in April. Facebook's biometric data collection, plaintiffs point out, has been the subject of a U.S. Senate hearing and regulatory scrutiny in Europe, where the tag suggestion feature is no longer operational.

The company's lawyers at Mayer Brown asked U.S. District Judge James Zagel of the Northern District of Illinois to transfer the cases to the Northern District of California last month, citing the forum selection clause in Facebook's terms of service. Facebook requires users to agree to litigate all disputes with the company in federal or state court in California before allowing them to sign up for a free account. Plaintiffs agreed to the transfer and Zagel gave sign off to it on July 29.

'Ultimately we think either court is fully capable of resolving the issues, and we didn't want to waste time briefing a procedural issue when we could be advancing the merits of the case instead,' Edelson said.

Zagel previously named Edelson interim co-lead counsel along with Joel Bernstein of Labaton Sucharow and Paul Geller of Robbins Geller Rudman & Dowd,

A spokesperson for Facebook'told the Chicago Tribune'in April that Edelson's suit lacked merit. A company spokesperson didn't immediately respond to a request for comment on Wednesday.

Ross Todd writes for The Recorder, an ALM sibling of Internet Law & Strategy. He can be reached at'[email protected].

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Facebook Inc. will have home court advantage in a trio of privacy class actions claiming the company violated an Illinois law governing the collection of biometric data with its 'tag suggestion' feature.

The suits, which were filed in Illinois courts this spring by high-profile plaintiffs firms, claim that Facebook's use of facial recognition technology violates a 2008 Illinois law regulating the way companies use technologies that analyze individuals' unique physical characteristics to identify and track them. In late July a federal judge in Chicago transferred the suits to the Northern District of California where this week they began appearing on the docket of U.S. Magistrate Judge Maria-Elena James.

Lawyers at Edelson PC, Labaton Sucharow, and Robbins Geller Rudman & Dowd sued Facebook on behalf of the site's Illinois users. Each suit claims Facebook violated the state's Biometric Information Privacy Act (BIPA), which makes it illegal for a company to collect or access customers' biometric identifiers without first informing them in writing about what's being collected, how it's being used, and how long it's being stored. The law, which also requires companies to get written release from those whose data is being collecting, carries statutory damages of $1,000 for negligent violations, and $5,000 for those that are 'intentional and reckless.'

Facebook users have long been able to identify their friends in photos uploaded to the social networking site, or 'tag' them as it's called in Facebook parlance. But plaintiffs claim that the so-called 'tag suggestion' feature, which was launched on the site in 2010, uses sophisticated facial recognition software to automatically match pictures with names in a way that violates the BIPA.

'Unfortunately, Facebook actively conceals from its users that its Tag Suggestion feature actually uses proprietary facial recognition software to scan their uploaded photographs, locate their faces, extract unique biometric identifiers associated with their faces, and determine who they are,”wrote Edelson's Jay Edelson'in the first suit filed in the Circuit Court of Cook County in April. Facebook's biometric data collection, plaintiffs point out, has been the subject of a U.S. Senate hearing and regulatory scrutiny in Europe, where the tag suggestion feature is no longer operational.

The company's lawyers at Mayer Brown asked U.S. District Judge James Zagel of the Northern District of Illinois to transfer the cases to the Northern District of California last month, citing the forum selection clause in Facebook's terms of service. Facebook requires users to agree to litigate all disputes with the company in federal or state court in California before allowing them to sign up for a free account. Plaintiffs agreed to the transfer and Zagel gave sign off to it on July 29.

'Ultimately we think either court is fully capable of resolving the issues, and we didn't want to waste time briefing a procedural issue when we could be advancing the merits of the case instead,' Edelson said.

Zagel previously named Edelson interim co-lead counsel along with Joel Bernstein of Labaton Sucharow and Paul Geller of Robbins Geller Rudman & Dowd,

A spokesperson for Facebook'told the Chicago Tribune'in April that Edelson's suit lacked merit. A company spokesperson didn't immediately respond to a request for comment on Wednesday.

Ross Todd writes for The Recorder, an ALM sibling of Internet Law & Strategy. He can be reached at'[email protected].

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