Facebook must face privacy class action lawsuit, loses facial recognition appeal, U.S. Court of Appeals rules

The 9th Circuit U.S. Court of Appeals issued its ruling on Thursday that Facebook users in Illinois can sue the company over face recognition technology. The Court rejected Facebook’s arguments to halt a class action lawsuit claiming it illegally collected and stored the biometric data of millions of users.

The class action lawsuit has been working its way through the courts since four years, when Illinois Facebook users sued the company for alleged violations of the state’s Biometric Information Privacy Act by automatically collecting and identifying people in photographs posted to the service. The case is Patel et al v Facebook Inc, 9th U.S. Circuit Court of Appeals, No. 19-15982.

Now, thanks to a unanimous decision from the Circuit Court, the lawsuit can proceed. The statement from the circuit came as per this, “We conclude that the development of face template using facial-recognition technology without consent (as alleged here) invades an individual’s private affairs and concrete interests. Similar conduct is actionable at common law.”

According to the American Civil Liberties Union (ACLU), it's the first decision by a U.S. appellate court to directly address privacy concerns posed by facial recognition technology.

"This decision is a strong recognition of the dangers of unfettered use of face surveillance technology," Nathan Freed Wessler, an attorney with the ACLU Speech, Privacy and Technology Project, said in a statement. "The capability to instantaneously identify and track people based on their faces raises chilling potential for privacy violations at an unprecedented scale."

“This biometric data is so sensitive that if it is compromised, there is simply no recourse,” Shawn Williams, a lawyer for plaintiffs in the class action, said to Reuters. “It’s not like a Social Security card or credit card number where you can change the number. You can’t change your face.”

Facebook has been currently facing broad criticism from lawmakers and regulators over its privacy practices. Last month, Facebook agreed to pay a record $5 billion fine to settle a Federal Trade Commission data privacy probe.

Facebook said it plans to appeal. “We have always disclosed our use of face recognition technology and that people can turn it on or off at any time,” according to Reuters report.

Illinois users accused Facebook for violating the Biometric Information Privacy Act

Reuters report that in 2015 the lawsuit began when Illinois users accused Facebook of violating that state’s Biometric Information Privacy Act in collecting biometric data. Facebook allegedly accomplished this through its “Tag Suggestions” feature, which allowed users to recognize their Facebook friends from previously uploaded photos.

Writing for the appeals court, Circuit Judge Sandra Ikuta said the Illinois users could sue as a group, rejecting Facebook’s argument that their claims were unique and required individual lawsuits.

She also said the 2008 Illinois law was intended to protect individuals’ “concrete interests in privacy,” and Facebook’s alleged unauthorized use of a face template “invades an individual’s private affairs and concrete interests.”

The court returned the case to U.S. District Judge James Donato in San Francisco, who had certified a class action in April 2018, for a possible trial.Illinois’ biometric privacy law provides for damages of $1,000 for each negligent violation and $5,000 for each intentional or reckless violation. Williams, a partner at Robbins Geller Rudman & Dowd, said the class could include 7 million Facebook users.

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