On May 5, 2016, in re Facebook Biometric Information Privacy Litigation, (No 3:15-CV-03747-JD) the US District Court of the Northern District of California denied Facebook Inc’s motions for dismissal and summary judgment on the basis that the plaintiffs had stated a plausible claim for relief under the State of Illinois’s Biometric Information Privacy Act (BIPA).
The plaintiffs alleged that Facebook’s use of facial recognition software, popularly known as the “tag suggestion” feature, to extract unique biometrics from photographs uploaded to its online social network violated the BIPA. The parties agreed to transfer the cases to the Northern District of California, where these actions were consolidated into a single class action. Facebook brought motions for dismissal and summary judgment to challenge the class action at the pleading stage.
Facebook based its motions on two arguments:
- that any claims under Illinois law were precluded by California choice of law clauses in Facebook’s terms of use; and
- that, in any event, BIPA should be interpreted to exempt the collection of biometric identifiers from photographs.
The Court rejected both arguments on the basis that the California choice-of-law clause in Facebook’s terms of use is contrary to the State of Illinois policy to protect its citizens’ right to privacy in their personal biometric data. Secondly, the Court rejected Facebook’s contention that BIPA categorically excludes from its scope all information involving photographs and held 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.”