Facebook loses first round in facial recognition lawsuit

A lawsuit against Facebook's popular photo-tagging feature will move forward, a federal judge in California ruled Thursday, clearing a significant hurdle for the plaintiffs.

The court's decision marks yet another loss for tech companies in the area of user privacy. Last March Google was slammed with a similar lawsuit in Illinois. Shutterfly, a company that uses face recognition for its ThisLife cloud storage platform, suffered a blow in January when a judge in Illinois allowed a lawsuit against that company to proceed.

Privacy advocates are against the face recognition technology because they say these companies may be supplying biometric data to government authorities without the user's consent, after it emerged that the FBI’s standard warrant to social media companies seeks copies of photos that users upload, as well as those that they are tagged in, the Electronic Frontier Foundation reports.

The latest complaint, filed in Illinois last year, alleges that Facebook’s feature violates the state’s Biometric Information Privacy Act (BIPA). The law, passed in 2008, prohibits tech companies from collecting and storing the biometric data of consumers – including, fingerprints, “voice prints,” scans of “hand or face geometry,” – without the user's consent.

The case was transferred to California at Facebook’s request, under the company's users agreement, which requires that litigation against the company be transferred to its home state, the Wall Street Journal reported.  

Facebook had argued that the users had agreed to the user agreement which is governed under California law, which doesn’t require consumers consent. Illinois and Texas are the only states that regulate how private companies may use biometric data, and there aren’t any federal laws that govern the use of biometric data.

But US District Judge James Donato rejected the company's request, contending that taking a position with the company will deal a blow to Illinois privacy laws.

“But if California law is applied, the Illinois policy of protecting its citizens’ privacy interests in their biometric data, especially in the context of dealing with ‘major national corporations’ like Facebook, would be written out of existence, wrote Donato in the Ruling issued Thursday.

“The Court accepts as true plaintiffs' allegations that Facebook's face recognition technology involves a scan of face geometry that was done without plaintiff's' consent,” Donato wrote.

Facebook’s photo-tagging system – first introduced in 2010 – uses facial recognition technology to identify faces when users upload photos and automatically matches names to faces, allowing users to easily see their friends. It is more powerful than the FBI recognition technology, according to the Verge. The technology can recognize people's faces  97.25 percent of the time, which is just 0.25 percent shy of human recognition ability.

Facebook has said that its user agreement terms allow users to opt out of being tagged by friends, but Jay Edelson, an attorney who represents the plaintiff who first filed the complaint against Facebook says that the option doesn’t address his client's concerns, he told the Chicago Tribune last year.

“If he changed the privacy setting, that wouldn’t change anything because (Facebook) had taken his data and they’re holding on to it,” Edelson said. “There’s no delete button.”