You know how when you post a photo on Facebook of yourself with some friends and Facebook automatically prompts you to tag those people? And it doesn’t just prompt you to tag “your friends” it prompts you with their names because Facebook already knows what you and everyone else on Facebook look like.
While the immediate result is simply a matter of convenience, it’s also kind of scary to know that Facebook is using facial recognition software to identify you. That means that even if your friends don’t tag you in all their photos, Facebook still knows where you were and with whom.
Nimesh Patel was so upset by this idea that he sued Facebook, on behalf of himself and a class of other Facebook users, for allegedly violating their privacy. Although Patel lives in Illinois and the complaint alleges Facebook violated the Illinois Biometric Privacy Act (IBPA), the case has been moved to the federal court for the Northern District of San Francisco. The federal judge hearing the case has recently decided to certify the class, which means it will now be allowed to move forward through the courts.
In agreeing to certify the class, Judge James Donato also defined the parameters of the case, which consists of two main parts: 1) whether Facebook collected this biometric data on consumers under the IBPA; and 2) whether consumers were notified about the biometric data and its uses and had given their consent.
Facebook argued that consumers should also have to prove they were “aggrieved” (as in, had suffered some serious injury or other harm) as a direct result of the use of the biometric data, but Judge Donato rejected that argument, saying the intention of the IBPA was to protect consumers’ right to privacy as it related to their own biometric data. The judge went even further by saying that a consumer is already “aggrieved” if their legal rights have been invaded as a result of the alleged violation.
Facebook also argued that Illinois law could not be applied to this case since their servers are not located in Illinois, but the judge also rejected this argument. Instead, since online services affect people all over the world, he decided that it does not make sense to separate their actions into specific geographical areas.
Industry lobbies have succeeded in eliminating legal protection for consumers against biometric data in every state except Washington, Illinois, and Texas. Now Facebook appears to be trying to do away with the Illinois law as well.
But Facebook does not collect biometric data from every photo that gets uploaded to its site, nor does it store this information for every single user. As a result of this limitation, as well as the limitation of the IBPA, the class of potential plaintiffs has been limited to just those Facebook users in Illinois for whom Facebook has created and stored a facial template, which is what Facebook uses to distinguish the face of a particular user from other pictures on the social media site.
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