• by Wendy Davis  @wendyndavis, January 25, 2016

Siding with Facebook, a federal judge in Illinois has dismissed a lawsuit challenging the company's use of facial recognition software.

U.S. District Court Judge Jorge Alonso ruled that Facebook can't be sued in Illinois for allegedly creating a "faceprint" database because the company doesn't have enough connections with the state.

"Because plaintiff does not allege that Facebook targets its alleged biometric collection activities at Illinois residents, the fact that its site is accessible to Illinois residents does not confer specific jurisdiction over Facebook," Alonso wrote in a ruling issued on Thursday.

The opinion stems from a lawsuit filed in August against Facebook by Frederick William Gullen -- a non-Facebook user. He alleged that his photo was uploaded to Facebook last May by someone else, who then tagged the photo with Gullen's name.

His complaint alleges that Facebook scanned the photo and extracted "data relating to the unique contours of his face and the distances between his eyes, nose and ears," and then incorporated his faceprint to the company's database.

Gullen said this activity violates a 2008 Illinois biometric privacy law that requires companies to obtain written releases from people before collecting a "scan of hand or face geometry" and other biometric data. The statute also requires companies that gather biometric data to notify people about the practice, and to publish a schedule for destroying the information.

Alonso said in a 6-page opinion that Facebook didn't take any actions in Illinois that would allow Gullen to bring his case in that state. "Facebook uses the tag suggestions and facial recognition software on all uploaded photos, not just those uploaded in or by residents of Illinois," Alonso wrote. "Plaintiff does not, and could not plausibly, allege that Facebook knew an Illinois resident would upload a photo of him and tag his name to it, thereby (allegedly) giving Facebook access to plaintiff’s biometric information."

But a different judge in Illinois recently came to the opposite conclusion in a lawsuit against Shutterfly, which also is facing a lawsuit for allegedly violating the Illinois Biometric Privacy Act. U.S. District Court Judge Charles Norgle refused to dismiss that case, writing that there was "a strong interest in adjudicating the matter locally," given that Shutterfly offers photo-sharing and photo-printing services to Illinois residents, and is accused of violating an Illinois law.

Alonso's decision appears to leave Gullen free to bring his lawsuit against in California, where Facebook is headquartered.

Facebook is still facing a separate lawsuit in California for allegedly violating the Illinois law. Facebook argues in that case that the Illinois law doesn't apply to data extracted from photographs. That matter is pending before U.S. District Court Judge James Donato in San Francisco.