• by Wendy Davis  @wendyndavis, December 13, 2017

Facebook is pressing a judge to throw out a lawsuit accusing the company of violating an Illinois privacy law regarding "faceprints" on the grounds that the law doesn't apply to conduct that occurs in other states.

"There is no evidence in the record that Facebook performed a facial recognition analysis on plaintiffs’ photographs ... in Illinois," Facebook argues in papers filed late last week with U.S. District Court Judge James Donato in the Northern District of California.

Facebook makes the argument as part of a new bid to convince Donato to dismiss a 2015 class-action complaint by Illinois residents who allege that the company's automatic photo-tagging feature violates the Illinois Biometric Privacy Act. Facebook's photo-tagging function recognizes users' faces and suggests their names when they appear in photos uploaded by their friends. To accomplish this, the social networking service draws on its vast trove of users' photos.

The Illinois Biometric Information Privacy Act requires companies to obtain written releases from people before collecting certain biometric data, including scans of face geometry. That measure, 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 says its photo-tagging feature isn't covered by the Illinois law, arguing that the law only applies to activity that occurs in Illinois. The company adds that any attempt to regulate activity in California, where it's located, would be unconstitutional because only Congress can regulate interstate commerce.

"The facial-recognition process occurs on Facebook’s servers, none of which is in Illinois," Facebook writes in its court papers. "Neither Illinois law nor the federal Constitution permits the application of (the Biometric Information Privacy Act) to that conduct."

Facebook also notes that California lawmakers in 2001 rejected a law that would have regulated facial recognition technology. The company argues that lawmakers in Illinois are constitutionally prohibited from "overriding the decisions of California and other states to stay out of this area."