Headquarters for social networking company Facebook Inc. in Menlo Park California. Photo: Jason Doiy/ALM

Is the collection of an individual's biometric data in violation of the Illinois Biometric Information Privacy Act enough to establish standing in federal court?

That's one of the questions that a panel of the U.S. Court of Appeals for the Ninth Circuit grappled with Wednesday in considering whether Facebook should face a federal class action for failing to get written consent from Illinois users before creating facial maps to fuel its “tag suggestions” feature.

Facebook's lawyers at Mayer Brown convinced the Ninth Circuit to pump the breaks on the class action that was poised for trial before U.S. District Judge James Donato last year to consider whether the plaintiffs had standing and whether the case could move forward as a class action given the potential billions in statutory damages at stake.

But on Wednesday Mayer Brown's Lauren Goldman faced a series of pointed questions from judges on the panel—in particular, Circuit Judge Sandra Ikuta and U.S. District Judge Benita Pearson of the Northern District of Ohio sitting by designation—about whether the company had invaded users privacy through the feature launched in 2011, which prompts users to identify friends in pictures uploaded to the social media site.

“We've said there's an interest in privacy that's a concrete interest recognized in the law,” said Ikuta early in Goldman's arguments.

Goldman responded that the court had recognized that right in a case involving ESPN where the network was accused of collecting viewers personally identifiable information and sharing it with analytics companies to build consumer marketing profiles. Facebook's tool, which allows users whom the plaintiffs are already connected with on the social network to identify them in photos, makes no such disclosure, Goldman contended.

But Ikuta responded that the tool worked “sort of like CSI” and later noted that the U.S. Supreme Court had advised courts to look at “technologically-enhanced invasions of privacy” differently since they “can multiply the effect of what a normal human can do.”

Pearson added that a recent decision by the Illinois Supreme Court, where the state's high court found that plaintiffs don't need to allege any harm beyond a statutory violation to sue under BIPA, “presumably answered the question that Facebook poses” about standing.

But Goldman argued that in federal court “a preventative lawsuit is not sufficient absent a showing of impending harm.” People who don't have standing can't recover damages in federal court, she added.

Pearson, however, noted that Facebook had disabled the feature in Canada and other places where it arguably runs afoul of local regulations. “Why don't you just stop doing it in Illinois?” she asked.

Goldman responded that the company thinks that its disclosure to users, which gives them the option of disabling the feature for their photos, complies with the law and that BIPA was never meant to apply to software like Facebook's.

Arguing for the plaintiffs, J. Aaron Lawson of Edelson said that Facebook's failure to get written consent had deprived his clients of “the meaningful right to say no to the collection of this information.”

Ikuta, however, noted that that privacy right that plaintiffs were asking the court to recognize didn't fall directly in line with traditional common law.

Ikuta said there's “not a common law right to not have your face mapped and stored.”