Facebook Facial Scan Technology Leads to Biometric Privacy Class Action
Facebook image processing software and algorithms that are known to users as a way to identify individuals in photos uploaded to the application have been targeted in a new class action for violating privacy protections under Illinois law. In 2008, Illinois passed the Biometric Information Privacy Act (the “Act”) which seeks to set standards for collection and use of certain personally identifiable information and curtail unscrupulous use of such information.
Under the Act, a "biometric identifier" includes the following things:
- Retina or iris scan
- Fingerprint
- Voiceprint
- Scan of hand or face geometry
Ostensibly, the biometric information at the heart of the complaint is Facebook’s collection of scans of “face geometry” in digital photos. Among other requirements, the Act states that a company may not collect, capture, purchase, or receive biometric information unless it:
- Informs the subject that a biometric identifier or biometric information is being collected or stored,
- Informs the subject of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used, and
- Receives a written release executed by the subject of the biometric identifier or biometric information or the subject's legally authorized representative.
Additionally, no company may “sell, lease, trade, or otherwise profit from a person's or a customer's biometric identifier or biometric information.” The complaint alleges various violations of these regulations. It is hard to conceive how Facebook, which is in the business of turning user information into targeted marketing campaigns for advertisers, could somehow not be profiting from the collection of images and deriving identity data from them. The liability issues will likely turn on whether the manner in which Facebook processes the images amounts to “scans of face geometry” and, if they do, whether its terms of service and privacy policy adequately meet the requirements for capturing such data as set forth above.
According to the Business Insider, in Europe, where privacy is substantially more regulated than in the US, Facebook eliminated its use of the visual identification technology and deleted the data it had collected from users.
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