Judge Freezes Facebook’s BIPA Settlement, Suggesting Too Much Lenience

A $550 million dollar settlement negotiated by Facebook has been put on hold by U.S. District Judge James Donato until lawyers explain to him why the amount is only a fraction of what the damages could be under the Illinois Biometric Information Privacy Act (BIPA) which Facebook is said to have violated.

The class-action suit — which was filed by lead plaintiff Nimesh Patel in 2015 — alleges that Facebook began mapping users’ faces in 2011 for a feature that recognizes individuals in photos and suggests tags for them.

Under the BIPA, capturing and/or storing an individual’s biometric data (in this case face prints) without the written consent of the individual is illegal in the state of Illinois, and upon conviction carries a fine of $1,000 per negligent infraction, and $5,000 for each knowing infraction.

As Courthouse News Service reports, because the number of users in Illinois that had uploaded photos of themselves to Facebook is in the millions, Donato expressed puzzlement as to why the charges weren’t in the tens of billions of dollars range.

“The Illinois Legislature said this is meant to be an expensive violation,” said Donato in a preliminary settlement approval hearing held via video.

He went on to demand an explanation as to why the higher range $5,000 penalty was taken off the table in light of a $5 billion fine Facebook paid the Federal Trade Commission (FTC) in 2019 for a violation involving the deception of users regarding how long their private information was under the social network giant’s control.

“It looks to me that what Facebook did to violate the BIPA may also have been a violation of that prior FTC consent decree, in which case you have a pretty good argument that this is an intentional or reckless violation of BIPA that would warrant $5,000,” Donato said.

The lawyer representing the plaintff class, Rafey Balabanian, argued that he felt the $47 billion maximum penalty was not realistic due to the fact that it appears Facebook was under the impression that the uploaded photographs were exempt from the BIPA, and had in fact lobbied for the Australian government to adopt the same definition of biometric information as is found in the BIPA legislation.

For his part, Donato said that he didn’t find that to be “a particularly persuasive argument,” and pointed out that the $550 million settlement amount would still only amount to 1.25% of the maximum if that number was in fact $47 billion.

“They’re taking what is essentially a 98.75% discount off what the Illinois Legislature said should be the damages,” Donato said.

Referring back to the ruling in the FTC case of last year, Donato also wanted both sides to explain how the BIPA stipulation that Facebook must delete plaintiff biometric data obtained without their consent is any different from what they were already required to do as a result of the FTC ruling.

“I want to hear more about why this is something that’s actually a benefit to the class and not just slapping on obligations that Facebook is already required to do,” he said, adding that he wants Facebook engineers to offer a plan for how they mean to handle the plaintiff’s facial data once the settlement is agreed upon.

For its part, Facebook is defending the technology used to obtain the face prints, arguing that it relies more on photographic elements like lighting than it does on facial geometry as the suit alleges.

Facebook attorney Michael Rhodes also stated his belief that the $550 million settlement — about $150 to $300 per person — is an “extraordinary economic recovery” for the class considering Facebook’s unwillingness to admit wrongdoing, and the fact that the plaintiffs suffered no “concrete harm” as a result of the violation – however, that argument was in fact rejected by a three-judge Ninth Circuit panel in August of 2019.

Donato has given both sides the next few weeks to come up with the answers he requested, warning them that a jury trial was still possible and the settlement was not a done deal should he remain unsatisfied with the reasoning behind the amount.

Source: Courthouse News Service

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June 8, 2020 – by Tony Bitzionis