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Plaintiffs ‘Like’ Motion to Dismiss Ruling in Facebook Biometric Privacy Case

May 6, 2016

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”).

Facebook’s motions made two central arguments: 1) that any claims under Illinois law were precluded by California choice-of-law clauses in Facebook’s terms of use; and 2) even if not precluded, that BIPA should be interpreted to exempt the collection of biometric identifiers from photographs.  Judge Donato rejected both in resounding terms.  

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 and Mark Dearman 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).

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