New Class Action Brought Over Facebook’s Facial Recognition Program

Those who are familiar with Facebook’s quirks and features will know that whenever they upload a photograph containing their friends’ faces, an option will pop onto the screen, prompting the user to “tag” their friends. Facebook is able to scan user-submitted images and store that data for later use – including information about people’s faces. This has been a feature of the popular social media site since 2010. The feature has since expanded in scope; Facebook’s algorithms can automatically match a user’s profile to a newly uploaded photograph, and conjure up the corresponding “suggested” usernames, and asks the user for permission to tag.

It turns out that this seemingly harmless practice is against the law of some states. In Illinois, for example, there is a Biometric Information Privacy Act (BIPA) that imposes liability for companies who collect biometric data from uninformed residents without first providing notice and obtaining written consent.

Patel et al. v. Facebook Inc. is a class action suit currently before the U.S. District Court for the Northern District of California. On February 26th, 2018, the Court refused to grant Facebook’s motion to dismiss over the issue of standing.

Specifically, Facebook pointed to the recent Supreme Court holding in Spokeo v. Robins and argued that the plaintiffs lacked standing (required by Article III of the U.S. Constitution) because the plaintiffs had failed to show that a concrete harm had resulted from Facebook’s violation of statutory rights granted by BIPA.

The District Court turned to the legislative intent behind Illinois’s BIPA and disagreed, holding that when Facebook ignored the procedural rights of notice and written consent afforded by BIPA, a concrete injury resulted, which satisfies the requirement of standing.

Although it is uncertain how this case will be resolved, it is nevertheless illustrative of the growing tensions between technology companies, consumers, and legislators over the extent of privacy protection in the United States. It appears that as companies like Facebook regularly churn out new features in an effort to keep users entertained and engaged, these features almost always become more invasive in practice.


Patel v. Facebook Inc., 3:15-CV-03747-JD, 2018 WL 1050154 (N.D. Cal. 2018).

35 No. 20 Westlaw Journal Computer & Internet 07

Biometrics: California Federal Court Denies Spokeo Motion to Dismiss Facebook Biometric Information Privacy Act Case | Locke Lord LLP – JDSupra (


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