Class Action Over Facebook's Biometric Photo Tagging Goes Forward

By Casey C. Sullivan, Esq. on May 10, 2016 | Last updated on March 21, 2019

You upload photos to Facebook and the social media website gives you suggestions on who to tag. Is that your old roommate Javier on the fishing trip? Or maybe it's Craig, from accounting? And this photo in your feed, you weren't there when it was taken, but would you like to tag Lijuan anyway?

All that's possible through Facebook's fairly sophisticated biometric technology, which uses facial recognition software to scan members' faces and identify them in photos posted to the site. It's called "DeepFace" technology and, according to a putative class action in the Northern District of California, it's against the law. Or, at least, one law. In Illinois. And that's good enough for now, the court ruled last week, striking down Facebook's objections that its user agreement requires disputes to be resolved under California law.

Would You Like to Tag Facebook in This Lawsuit?

Under the Illinois Biometric Information Privacy Act, written consent is needed to collect biometric data, and notice must be given regarding the data's collection, what purposes it will be used for, and how long it will be stored. The Federal Trade Commission has suggested similar standards for biometric data, but Illinois's BIPA stands alone, creating some of the strictest biometric regulations around.

The named plaintiffs in the class action allege that Facebook collected their biometric data in violation of BIPA. But, Facebook argued, its user agreement's choice-of-law provision prohibited the use of the Illinois statute as the basis of the suit.

Enforceable TOS, but Not Choice of Law

And here's where things get tricky. While the court agreed that Facebook's user agreement was enforceable, it declined to enforce the choice-of-law provision. First, the court noted, Facebook uses typical "by clicking to sign up, you are indicating that you have read and agree to the Terms of Use and Policy" language. In one click you both create your account and agree to the terms of service, which the court found "raises concern about contract formation" finding it to be only just enough to create an enforceable agreement.

But that agreement's choice-of-law clause could not be used to avoid BIPA. Under California choice-of-law jurisprudence, courts will not enforce a choice-of-law clause if doing so would be contrary to public policy or if the other state "has a materially greater interest in the determination of the matter." Both applied here. Allowing Facebook to avoid BIPA would contradict Illinois fundamental policy, while Illinois itself had a much greater interest in the outcome of the BIPA dispute.

And with that, the putative class action made it over its first major hurdle. There are bound to be more to come, but for now the suit survives.

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