U.S. appeals court allows lawsuit challenging Facebook facial recognition program

A federal appeals court in San Francisco ruled on Thursday that Facebook users in Illinois can go ahead with a class action lawsuit challenging the social media company’s use of facial recognition technology.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously said that consumers were entitled to claim that Facebook’s collection of data in connection with its Tag Suggestions feature violates a strict Illinois privacy law.

Circuit Judge Sandra Ikuta wrote, “We conclude that the development of a face template using facial-recognition technology without consent (as alleged here) invades an individual’s private affairs and concrete interests.”

The panel also upheld a decision by U.S. District Judge James Donato of San Francisco to allow the case to proceed as a class action on behalf of several million Illinois residents on whom Facebook collected the data in 2011 or later. The consumer lawsuit was originally filed in Chicago but was transferred to San Francisco at Menlo Park-based Facebook’s request.

Facebook said in a statement, “We plan to seek further review of the decision. We have always disclosed our use of face recognition technology and that people can turn it on or off at any time.”

The American Civil Liberties Union said the ruling is the first time a U.S. appeals court has addressed the alleged harms resulting from facial recognition technology.

ACLU attorney Nathan Wessler stated, “This decision is a strong recognition of the dangers of unfettered use of face surveillance technology.

The capability to instantaneously identify and track people based on their faces raises chilling potential for privacy violations at an unprecedented scale.”

Illinois’s Biometric Information Privacy Act requires private companies to notify customers and obtain permission before collecting, storing or using biometric identifiers or information.

Facebook’s Tag Suggestions feature, launched in 2011, proposes tags or names for individuals in Facebook photos when an individual has previously been tagged in at least one posted photo, unless the individual has opted out of Tag Suggestions.

The face templates used to recognize faces are made up of strings of numbers representing geometric data points such as distances between the eyes, nose and ears.

The appeals panel rejected Facebook’s argument that the lawsuit’s plaintiffs hadn’t shown concrete injury, saying that “Facebook’s alleged collection, use, and storage of plaintiffs’ face templates here is the very substantive harm targeted by the Biometric Information Privacy Act.”

Unless Facebook successfully appeals to an expanded 9th Circuit panel or the U.S. Supreme Court, the case will now go back to Donato’s court for a future trial.

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