Court Allows Non-Facebook Users to Proceed with BIPA Lawsuit Against Meta

$650 million was not enough to resolve all of Meta’s legal problems in Illinois. That record-breaking 2020 settlement stemmed from a lawsuit that alleged that the tech giant (then known as Facebook) had violated the state’s Biometric Information Privacy Act (BIPA) when it used facial recognition technology to scan the faces of its users without consent.

Now the company is facing a second lawsuit that concerns people who did not have accounts on the social media platform. Facebook users can (and often have) uploaded pictures that contain images of non-users, whether at a party or in some other kind of group social setting. The new lawsuit (filed by plaintiff Clayton Zellmer) alleges that Meta violated BIPA by scanning the faces of people caught in the periphery.

Of course, non-users had no opportunity to consent to the use of their biometric data. However, the question of consent is unlikely to be the key point of contention in the case. Meta argues that it cannot be expected to obtain consent from non-users because it does not know who they are and has no mechanism for reaching out to people that it cannot identify. Judge James Donato more or less agrees with that logic, at least to the extent that he believes that it is unreasonable to expect Facebook to try to track down every single stranger on its platform.

At the same time, Donato did call Meta to task for failing to have a written policy that details how it would use biometric data, and how long that data would be stored. That alone would represent a breach of BIPA law if Facebook was indeed scanning the faces of non-users. Meta has claimed that it automatically deletes the face templates of anyone that cannot be matched to a current Facebook member, and that it therefore cannot be accused of misusing facial recognition because it is not using the technology to identify anyone not on the platform.

Zellmer’s lawyers, on the other hand, argue that Facebook did, in fact, store the templates of non-members to save them for later use. They also suggested that the fact that Facebook could determine that it did not have a match for an individual proves that the company was performing some kind of biometric scan, even if that data was deleted later. Judge Donato did not rule on the merits of either argument, but is allowing the case to proceed to trial to determine the extent of Meta’s biometric operations.

In doing so, Donato rejected Meta’s request to dismiss the case with a summary judgment. The case will now proceed with a status conference on May 26, and Meta could be facing another large settlement if the plaintiffs can prove that Facebook was scanning the faces of non-members without having a written policy.

Donato is the same judge responsible for the $650 million settlement, who rejected a smaller $550 million deal. In the meantime, Meta is facing a separate lawsuit in Texas that concerns potential violations of that state’s Capture or Use of Biometric Identifier law.

Source: Courthouse News

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April 1, 2022 – by Eric Weiss