Facebook Loses Bid to Get Biometrics Suit Tossed on 'Spokeo' Grounds
A federal judge in San Francisco has denied Facebook's bid to have a set of privacy class actions brought over its "tag suggestions" feature thrown out.
February 26, 2018 at 06:51 PM
2 minute read
SAN FRANCISCO — A federal judge Monday denied Facebook's bid to have a set of class actions brought over a photo tagging feature thrown out, ruling that plaintiffs have alleged concrete violations of their privacy rights under the test laid out in Spokeo.
U.S. District Judge James Donato of the Northern District of California based his decision denying Facebook's motion to dismiss in large part on the language of the Illinois Biometric Information Privacy Act (BIPA). He wrote that the law's provisions leave “little question that the Illinois legislature codified a right of privacy in personal biometric information.”
“When an online service simply disregards the Illinois procedures, as Facebook is alleged to have done, the right of the individual to maintain her biometric privacy vanishes into thin air,” the judge added. “The precise harm the Illinois legislature sought to prevent is then realized.”
The outcome is not entirely surprising. Donato—who is overseeing three suits filed by lawyers at Edelson, Labaton Sucharow, and Robbins Geller Rudman & Dowd—had signaled at a hearing more than a year ago that he wasn't sure the U.S. Supreme Court's ruling in Spokeo v. Robins had dramatically altered the landscape for the plaintiffs.
Facebook declined to comment. The company is represented by John Nadolenco and Lauren Goldman of Mayer Brown, the firm that argued for Spokeo at the Supreme Court.
Facebook was sued both in California and Illinois in 2015 behalf of the site's Illinois users. The suits claimed that the company's use of facial recognition technology to suggest friends for users to tag in photos runs afoul of BIPA, which regulates the collection and retention of data about an individual's physical traits. The cases were later consolidated in front of Donato.
The plaintiffs, however, still have a few hurdles to clear before they can get to the merits of the litigation. Donato is set to hear arguments on class certification and Facebook's motion for summary judgment later next month. Facebook is arguing that because it does not actually conduct the photo scanning in Illinois, it cannot be subject to the state's law.
“We were pleased by the court's order and look forward to moving forward with our case,” Jay Edelson, founding partner of the Edelson firm, said in an email.
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