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Facebook Users Granted Class Certification in Facial Recognition Suit

On April 16, 2018, the Honorable James Donato, of the U.S. District Court for the Northern District of California, granted class certification to a group of Illinois Facebook users ("Plaintiffs") who claim that the social media company, Facebook, Inc. ("Facebook" or "Defendant"), scanned images of their faces as part of its "Tag Suggestions" feature without first obtaining their consent, in violation of Illinois' Biometric Information Privacy Act ("BIPA").

Defendant argued that there was no simple or unified way to show that all users had been aggrieved. Judge Donato found, however, that individualized evidence was unnecessary to establish the alleged statutory violations that aggrieved class members. Additionally, Judge Donato ruled that the BIPA did not require Plaintiffs to show injury or harm beyond statutory violation, stating "[BIPA's] intent cannot be squared with a construction of 'aggrieved' that requires some other 'actual' injury, whatever that might be, particularly when deprivation of BIPA's notice and consent requirements amounts to the precise harm the Illinois legislature sought to prevent."

Defendant also faces a related case brought by a class of nonusers alleging it scanned their facial geometry without first obtaining their written consent, as required by the BIPA. That case is also being presided over by Judge Donato. The cases are separate due to the fact that, upon signing up for a Facebook account, users consent to Facebook's Data Policy, which explains that Defendant is "able to suggest that your friend tag you in a picture by comparing your friend's pictures to information we've put together from your profile pictures and the other photos in which you've been tagged." Plaintiffs contend, however, that the data policy contains "ambiguous language intended to avoid using the term 'biometric data,' and, therefore, accepting the user agreement does not constitute the "informed written consent" that the BIPA requires.

The legal team at SFMS has significant experience litigating class action matters. If you have any questions regarding this subject or this posting, please contact Nick Lussier ([email protected]) or Chiharu Sekino ([email protected]). We can also be reached toll-free at (866) 540-5505.

Shepherd, Finkelman, Miller & Shah, LLP is a law firm with offices in California, Connecticut, Florida, New Jersey, New York, and Pennsylvania. SFMS is an active member of Integrated Advisory Group (www.iaginternational.org), which provides us with the ability to provide our clients with access to excellent legal and accounting resources throughout the globe. For more information about our firm, please visit us at www.sfmslaw.com.

Sources

Bayles, Cara. "Facebook Users Near Class Cert. In Face Scan Privacy Row." Law 360. Last modified on March 29, 2018.

Eslinger, Bonnie. "Facebook, Users Urge Quick Wins In Biometric Privacy Suit." Law 360. Last modified on March 19, 2018.

Posses, Shayna. "Facebook Can't Dodge Non-Users' Face Scan Privacy Claims." Law 360. Last modified on March 2, 2018.

Vogt, RJ. "Facebook Users Win Class Cert. In Face Scan Privacy Row." Law 360. Last modified on April 16, 2018.

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