Meta Prevails in BIPA Lawsuit Over Face Tagging

Meta has won an appeal against claims that it violated Illinois state law by analyzing the faces of people without profiles on its platform. A Ninth Circuit panel upheld the decision of an Illinois federal court, which had granted summary judgment in favor of Meta.

The case, led by Clayton Zellmer, argued that Meta’s actions violated Illinois’ Biometric Information Privacy Act. However, the appellate court was not convinced by the argument.

U.S. Circuit Judge Ryan Nelson stated that Zellmer failed to demonstrate how he or any proposed class members were harmed in a “concrete and particularized” way by the alleged violations. The panel concluded that face signatures do not qualify as biometric identifiers under Illinois law, referencing legal precedent.

Zellmer had initially filed the suit in Illinois after a $650 million settlement resolved similar claims from Facebook users in the state, asserting that his and others’ information was stored without consent after friends uploaded their photos to Facebook.

The panel affirmed the dismissal of Zellmer’s suit for lack of standing but differed from the lower court on the reasons why. It rejected the notion that there was a factual dispute about whether face signatures can identify a person, asserting that Illinois privacy law applies to all individuals whose information was held by Facebook. Despite Facebook creating a face signature for Zellmer, the court noted that his argument would imply that all retina, iris, or fingerprint scans are biometric identifiers, which would automatically violate the Illinois Biometric Information Privacy Act.

Zellmer’s claim that Facebook did not provide a retention schedule or guidelines for destroying face data was also dismissed. The panel referenced a Seventh Circuit conclusion that the duty identified by Zellmer was owed to the public generally, not to specific individuals. Meta maintained that it was unreasonable to expect the company to notify and obtain consent from millions of people in photos on the site, with whom it had no relationship, and stated it deleted face signatures if no match was found.

The Illinois Legislature recently passed an amendment to BIPA that proposes changing the fine scheme from a “per-scan” basis to a “per-person” basis. The amendment aims to reduce the financial burden on businesses by imposing a single fine for the collection of an individual’s biometric data, regardless of how many times it is scanned. The bill successfully passed through both the Illinois House of Representatives and the Senate, and is now awaiting Governor JB Pritzker’s signature to become law.

Source: Courthouse News Service

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June 18, 2024 – by Cass Kennedy