Facebook Faces Class Action Over Facial Recognition Technology

On April 15, 2018, a federal judge ruled that Facebook must face a class action lawsuit alleging that it unlawfully used a facial recognition process on photos without user permission. The ruling follows the Cambridge Analytica scandal and bogus political ad investigation.

In 2015, Facebook users sued the company for alleged violations of an Illinois state law regarding the use and storage of facial recognition algorithms without consent. The lawsuit involves Facebook’s Tag Suggestions tool, which identifies users in uploaded photos and suggests automatic tagging of friends. The feature was launched on June 7th, 2011.

According to complaint, Facebook “collects and stores their biometric data without prior notice or consent in violation of their privacy rights.” Illinois’ Biometric Information Privacy Act (“BIPA”) requires explicit consent before companies can collect biometric data like fingerprints or facial recognition profiles.

Judge James Donato stated “[a] class action is clearly superior to individual proceedings here. While not trivial, BIPA’s statutory damages are not enough to incentivize individual plaintiffs given the high costs of pursuing discovery on Facebook’s software and code base and Facebook’s willingness to litigate the case…Facebook seems to believe that a class action is not superior because statutory damages could amount to billions of dollars.”

The facial feature suggests who might be present in uploaded photos, based on an existing database of faces. In the court’s ruling, a four-step process was laid out. First, the software tries to detect any faces in an uploaded photo. It then standardizes and aligns them for size and direction. Then, for each face, Facebook computes a face signature – a mathematical representation of the face in that photo. Finally, face signatures are passed through a stored database of user face templates to look for similar matches.

The feature is not available to users in all countries and can be turned off in settings for U.S. users.

Facebook has stated publically that it believes that allegations to be meritless and that the data it collects does not trigger the Illinois law. Facebook has also noted that users can opt out of the feature.

Since the suit was initiated, Facebook has added a more direct notification alerting users to its facial recognition features.

If you are interested in the implementation of preventative advertising compliance protocols, or if you are the subject of a regulatory investigation or enforcement action, you can contact the author directly. You can also follow him on LinkedIn at FTC defense attorneys or on Twitter at FTC defense lawyers.

Richard B. Newman is an FTC compliance and defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the FTC and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.

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