• by Wendy Davis  @wendyndavis, February 25, 2016

Facebook says that users can't proceed with a lawsuit accusing the company of violating an Illinois biometric privacy law, because the company's terms of service provide that all disputes are governed by California's laws.

The plaintiffs "agreed to be bound by Facebook’s terms of use," Facebook says in papers filed on Wednesday with U.S. District Court Judge James Donato in San Francisco. "That agreement formed a contract between Facebook and the plaintiffs. And that contract requires that this case be dismissed with prejudice."

The social networking service's come in response to a potential class-action lawsuit centering on the company's faceprint database. The complaint -- filed by users Carlo Licata, Adam Penzen and Nimesh Patel -- stems from Facebook's automatic photo-tagging feature, rolled out in 2010. That feature recognizes users' faces and suggests their names when they appear in photos uploaded by their friends. To accomplish this, Facebook draws on its vast store of users' photos.

Licata alleges that Facebook's compilation of that database runs afoul of the Illinois Biometric Information Privacy Act, which requires companies to obtain written releases from people before collecting “face geometry” and other biometric data. The Illinois law, passed in 2008, also requires companies that gather biometric data to notify people about the practice, and to publish a schedule for destroying the information.

Facebook has argued that the case should be dismissed for several reasons, including that its terms of service say California law applies to all disputes. California doesn't have a law comparable to Illinois' biometric privacy measure.

Facebook argues in its latest papers that Licata, Penzen and Patel all agreed to the company's terms of service when they signed up for the site.

Lawyers for the consumers counter that Facebook hasn't provided any evidence showing it notified the plaintiffs about the terms of service, or that they agreed to the terms.

Donato is scheduled to hear arguments next week over that question.

But class counsel also argues in its papers that even if the users agreed to the company's terms of service, Illinois law should still apply because the state has a policy interest "in the biometric privacy rights of millions of Illinois residents."

Facebook has also argued that the Illinois law doesn't apply to data gleaned from photos. Donato isn't expected to address that question at next week's hearing.