Facebook has lost the first round in a court fight against some of its users who allege it “unlawfully” collected and stored users’ biometric data derived from their faces in photographs.
The judge presiding over the case in a California federal court last week turned down Facebook’s motion seeking dismissal of the suit.
Facebook filed the motion arguing that the users could not file a complaint under Illinois Biometric Information Privacy Act (BIPA) as they had agreed in their user agreement that California law would govern their disputes with the company, and that BIPA does not apply to “tag suggestions.”
The court found that Illinois law applies and that the plaintiffs have stated a claim under BIPA
The three users who claim the social network’s photo-tagging system violates their privacy will now get a full hearing.
Carlo Licata, Nimesh Patel, and Adam Pezen allege in a lawsuit filed with the Cook County court on Wednesday that Facebook’s biometric software violates Illinois’s Biometric Information Privacy Act, which forbids the collection of fingerprints or face prints without explicit permission.
When a person’s picture is uploaded to the Facebook site, their facial geometry is calculated, recorded, and compared to biometric data from other user photos in Facebook’s database in order to prompt suggestions of which specific person is shown for tagging purposes.
Facebook discloses its photo-tagging system in its Data Policy and allows users the choice of opting out. This does not stop Facebook from collecting the geometrics, however. Declining to take part in the tagging system through privacy settings merely prevents other users from tagging the individual in question.
“If he changed the privacy setting, that wouldn’t change anything because [Facebook] had taken his data and they’re holding on to it. There’s no delete button,” Licata’s attorney, Jay Edelson, told the Chicago Tribune.
This is not the first time Facebook’s photo tagging policy has come under fire. The feature has been unavailable in Europe since 2012, when enough privacy concerns were raised to force Facebook into deleting the geometric face data of its European users from its database, according to the Tribune.
Now that the Illinois lawsuit is moving forward, the repercussions could reach beyond Facebook. The Verge reported that Twitter and Google Photos have copied Facebook’s photo tagging system, with Google Photos facing a similar lawsuit due to the same Illinois law.