Chamber of Commerce urges dismissal of biometric privacy suit against Facebook

The U.S. Chamber of Commerce and others have stepped up in support of Facebook’s attempt to have a class action suit over biometric data privacy dismissed, arguing that allowing the suit to proceed will open other companies to “devastating harm,” MediaPost reports.

The Chamber writes that unless it is reversed, the precedent “will make it easier for plaintiffs’ counsel to pursue even meritless class actions, with devastating harm for businesses generally and technology companies in particular, discouraging investment and innovation, and ultimately harming the public,” according to an amicus brief filed with the 9th Circuit Court of Appeals.

A three-judge 9th Circuit panel rejected Facebook’s arguments for dismissal in August, agreeing unanimously with a previous judgement that the harm to “property interest” represents the kind of non-concrete but “intangible injuries” that grant standing under Spokeo.

A group representing the credit reporting industry and a non-profit legal organization are also backing Facebook’s appeal, according to Law360.

“As this case shows, millions of Internet users interact every day with technology companies to conduct transactions, share content, and connect with people all over the world,” the Chamber of Commerce writes. “The resulting huge volume of daily users and interactions exposes technology companies to enormous class actions for minor, technical violations.”

The avalanche of lawsuits filed under Illinois’ BIPA, like the Facebook suit, continues, and a commentary from Eversheds Sutherland LLP in JDSupra advises companies carefully consider their defense tactics while also considering changes to their compliance programs to mitigate the risk.

Defendants have used arguments about standing, extraterritoriality, constitutional and statutory defenses, statute of limitations, and class certification arguments to argue against their liability under BIPA.

The firm points out that Article III standing, which grants federal courts power and limitations to hear cases, is a separate issue from statutory standing. Federal court in Illinois have dismissed most, but not all complaints in which plaintiffs did not establish an injury. The above Facebook case and the State Supreme Court decision against Six Flags may significantly undermine many defenses on grounds of standing, however. Given these decisions, it is difficult to imagine the Chamber’s contention of “meritless class action” will be taken seriously on appeal.

The other lines of argument may be effective, depending on the circumstances of the complaint, but no defense is seen as broadly applicable and effective for getting cases dismissed.

“The viability of these defenses will become clearer as BIPA jurisprudence continues to develop in the coming months and years,” the firm’s representatives write.

New BIPA suits

Logistics company Saddle Creek Corporation is being sued by a former employee who alleges he did not provide written consent and was not informed of a retention policy for the company’s biometric time and attendance tracking solution, the Madison-St. Clair Record reports. The Grand Victoria Riverboat Casino, likewise, is being sued for using a biometric time and attendance system without fulfilling the informed consent requirements, according to the Cook County Record.

The Salvation Army is being sued by a current employee in a complaint which mirrors the others, except for the defendant being a charitable organization. As the Cook County Record reports, it was filed by an individual employed as a therapist for the organization.

Article Topics

Biometric Information Privacy Act (BIPA)  |  biometrics  |  data collection  |  data protection  |  Facebook  |  facial recognition  |  legislation  |  privacy