In an order dated May 5, 2016, the Honorable James Donato of the Northern District of California denied Facebook, Inc.’s (“Facebook”) motions to dismiss and for summary judgment in the consolidated action In re Facebook Biometric Information Privacy Litigation.
The case arises out of Facebook’s use of facial recognition software to extract unique biometric identifiers (i.e., graphical representations of facial features, also known as facial geometry) from photographs uploaded to its online social network. Plaintiffs allege that Facebook extracts this information without disclosing its biometric collection practices, much less obtaining express written consent, in violation of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (“BIPA”).
First, Judge Donato explained that the California choice-of-law clause is contrary to a fundamental policy of Illinois in protecting its citizens’ right to privacy in their personal biometric data.
Second, Judge Donato rejected Facebook’s statutory interpretation as “unpersuasive,” noting that the Illinois legislature enacted BIPA to address emerging biometric technology, such as Facebook’s face recognition software as alleged by plaintiffs, without including physical identifiers that are more qualitative and non-digital in nature. Accordingly, the Court refused to categorically exclude from its scope all data collection processes that use images, holding that Facebook’s proposed interpretation “has no support in the words and structure of the statute, and is antithetical to its broad purpose of protecting privacy in the face of emerging biometric technology.”
Judge Donato’s 22-page opinion followed full briefing, expedited discovery, and an evidentiary hearing. Robbins Geller attorneys Paul J. Geller, Shawn A. Williams, Travis E. Downs III, Stuart A. Davidson, Mark Dearman and David W. Hall and their co-counsel obtained this result for plaintiffs and look forward to the continued prosecution of the action and ultimately proving the case at trial.
In re Facebook Biometric Info. Privacy Litig., No. 3:15-cv-03747-JD, Order re Motion to Dismiss and Summary Judgment (N.D. Cal. May 5, 2016).