Facebook argues for biometric privacy class action suit to be thrown out

Facebook is attempting to quash a class action suite by arguing in an appeals court that the decision of the Illinois Supreme Court that procedural violations can establish standing for law suits under the State’s Biometric Information Privacy Act (BIPA) does not apply to federal lawsuits, The Recorder reports.

The social media giant’s lawyers told the U.S. Court of Appeals for the Ninth Circuit that the case is not comparable to a privacy suit against ESPN in which personally identifiable information was collected and shared with analytics companies to build profiles for consumer marketing, as the data was not shared.

The appeals court granted Facebook an emergency stay in May of last year after a District Court judge ruled that consistent harm to property interests from the use of “faceprints” by Facebook for its “tag suggestions” feature had been established, and the case could proceed to trial. Illinois’ State Supreme Court ruled in January that procedural violations of informed consent rules constitute harm, and establish legal standing for ‘aggrieved’ parties.

One of the three appellate judges noted that the U.S. Supreme Court has told courts to consider technological privacy invasions differently as their effects can be compounded. Another suggested that the Illinois Supreme Court ruling addresses Facebook’s contention that harm has not been established.

In federal court, however, a Facebook representative argues, “a preventative lawsuit is not sufficient absent a showing of impending harm.”

Judge Benita Pearson notes that the “tag suggestions” feature was disabled in Canada and other jurisdictions where it would have violated regulations, and asked why the same wasn’t done for Illinois. A Facebook lawyer responded that the company considered its disclosure to users and option to turn the feature off were sufficient, and BIPA was not meant to apply to the kind of software in question.

Judge Sandra Ikuta conceded that the privacy rights claimed by the plaintiffs are not held under traditional common law.

Illinois First District Appellate Court took its first opportunity to broaden the scope of the Supreme Court’s ruling this April, saying that biometric data collection alone – even without storage or processing — establishes injury.

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