For the fourth time this year, a lawsuit has been filed against social media giant Facebook with regards to the company’s face-recognition software. The class action lawsuit, filed in Illinois, claims that Facebook’s use of biometrics violates a unique Illinois privacy law entitled the Illinois Biometric Information Privacy Act (“BIPA”).
Essentially, the plaintiffs claim that Facebook violates BIPA because it collects and stores faceprints of its users without obtaining informed written consent. The lawsuit is federal because the proposed class of plaintiffs number in the millions, Facebook’s headquarters are located in California, and the user bringing the suit resides in Illinois.
In fact, the latest lawsuit is brought by a person who does not even have a Facebook account. He insists, however, that Facebook unlawfully created a template of his face when a Facebook user uploaded a picture of him.
The complaint states that, “Facebook is actively collecting, storing and using - without providing notice, obtaining informed written consent or publishing data retention policies - the biometrics of its users and unwitting non-users . . . Specifically, Facebook has created, collected and stored over a billion ‘face templates’ (or ‘face prints’) - highly detailed geometric maps of the face - from over a billion individuals, millions of whom reside in the State of Illinois.”
A representative from Facebook states that the lawsuits are without merit and that the company will defend itself vigorously. However, as the issue is largely untested as there is no legal precedent, the case could play out in a handful of different ways.
Mary Dixon, legislative director for the ACLU of Illinois stated that Illinois “[was] ahead of the curve” in passing BIPA. “I think it’d be hard to pass similar initiatives now given the intense lobby against some of the protections [Illinois] [was] able to advance.”
Indeed, there have been several efforts to create some sort of federal regulations regarding the commercial use of biometrics. However, earlier this year, a number of privacy-rights groups withdrew from discussions on how to create and draft guidelines for face-recognition technology.
Essentially, after months of negotiations, the groups grew very frustrated by the efforts of industry trade associations that would not agree to even the slightest of personal protections, including a regulation that would require companies to obtain the written consent of individuals before collecting and storing faceprints of consumers. Alvaro M. Bedoya, a Georgetown University Professor, points out that, “When not a single trade association would agree to that, we just realized we weren’t dealing with people who were there to negotiate. We were there to deal basically with people who wanted to stop the process, or make it something that was watered down.”
As Illinois is only one of two states (the other being Texas) that have some sort of law regulating biometrics practice, other states are watching the lawsuit closely as they hope to gain some guidelines for drafting their own regulations.
As Bedoya aptly points out, “You can’t turn off your face. Yes, it’s 2015, and yes, we’re tracked in a million different ways, but for most of those forms of tracking, I can still turn it off it I want to.”