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Judge Says Facebook Can Be Sued For Recognizing Faces

By Kaanii Powell Cleaver
Published on: 23:29 PST, May 8, 2016

If you’ve ever wanted to file a lawsuit against Facebook for invading your privacy, you might soon get the chance. You might, that is, if you live in the state of Illinois.

Last week a judge in a Northern California District courthouse ruled against Facebook’s motion to dismiss a class action lawsuit filed by Nimesh Patel, Carlo Licata and Adam Pezen under Illinois’ 2008 Biometric Information Privacy Act. Also known as BIPA, the statute regulates the way that privately owned companies must collect, retain, safeguard, disclose and destroy biometric identifiers and associated data. The law also notes that any collector of biometric data must obtain ‘informed written consent’ from any person whose ‘facial geometry’ is being scanned.

According to Ars Technica, the suit alleging the illegality of Facebook’s facial recognition software was moved to a California jurisdiction due to a change in the fine print of the social media site’s Terms and Conditions.

As of 2015, any legal proceedings against Facebook must be litigated under California law. In California, there are no laws on the books that clearly prohibit the collection and use of biometric data online or anywhere else in the Golden State. In fact, very few states do have such laws to safeguard the privacy of facial features. This did not deter the California judge from recognizing and following Illinois law as it pertains to the plaintiffs who filed the original lawsuit in their home state.

The Biometric Information Privacy Act says:

“Biometrics are unlike other unique identifiers and are biologically unique to the individual; therefore, once compromised, the individual has no recourse, is at heightened risk for identity theft.”

BIPA, which notes that the full ramifications of biometric technology are not yet understood, defines a ‘biometric identifier’ as an iris or retina scan, a voiceprint, fingerprint, or a scan of facial geometry. BIPA specifically excludes signatures, writing samples, tattoos, and photographs from the definition. International Business Times notes that when the Illinois law was written, Facebook was still a relatively small outfit, not the social media plexus of more than 1.5 billion active users that it is today.

This is where it gets a bit tricky. Illinois law says that photographs may be excluded from the privacy law, but ‘facial geometry’ is protected. Well, facial geometry is what Facebook uses to identify photos and suggest tags. Facebook biometric identification utilizes geometric algorithms that measure the relative distance between ‘landmarks’ that include cheekbones, noses, eye sockets and chins.

Geometric algorithms used in Facebook facial recognition are not the same as photometric algorithms that rely on distilled image values and statistics. For this and other reasons, Facebook may have a hard time citing BIPA’s ‘photos don’t count’ clause as a defense. Nor does Facebook obtain the ‘informed written consent’ that BIPA requires.

Aussie tagging experiment

If you think that Facebook image scanning and data collection is limited to your Facebook posts and comments, think again. Last November, Tech Crunch reported that Facebook was scanning private Messenger chat images in Australia. Dubbed ‘Photo Magic,’ Android and iOS versions utilize the same algorithms as Facebook timelines to analyze facial geometry in Messenger images. The feature then automatically offers to send the photo subject a copy of the image. If testing shows the feature is popular with the public, Facebook may debut Photo Magic Messenger software as a rival to Snapchat and SMS in the U.S. and other markets later this year. Facebook does not use biometric facial recognition in Canada or Europe due to privacy laws.

If you don’t want to be tagged in Facebook pictures, you can turn off tags in your Timeline and Tagging Settings.

[Photo by Joe Raedle/Getty Images]

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