• by Wendy Davis  @wendyndavis, May 9, 2018

The U.S. Chamber of Commerce is siding with Facebook in a battle over its facial recognition technology.

This week, the business group asked the 9th Circuit Court of Appeals to hear Facebook's appeal of a trial judge's decision allowing a group of Illinois residents to proceed with a privacy class-action.

The battle centers on the Illinois Biometric Information Privacy Act -- a 2008 law that requires companies to obtain written releases from people before collecting biometric data, including scans of face geometry. The state law -- which provides for fines of up to $5,000 per violation -- also requires companies that gather biometric data to notify people about the practice, and to publish a schedule for destroying the information.

Last month, U.S. District Court Judge James Donato in the Northern District of California ruled that all Facebook users in Illinois who had their "faceprints" stored by the company since 2011 could pursue a class-action alleging violations of the Illinois law.

Facebook is now asking the 9th Circuit to hear an immediate appeal of Donato's decision. The Chamber of Commerce is backing that request, arguing that the users who are suing shouldn't be able to proceed because they didn't suffer any injuries.

"By wrongly certifying a class of potentially millions of Facebook users without requiring any showing of real-world harm beyond a bare statutory violation, the district court effectively certified a 'no-injury' class action," the Chamber of Commerce writes in a proposed friend-of-the-court brief. "These types of class actions invite abusive litigation, impose enormous burdens on U.S. businesses, and in particular present substantial risks for technology companies, such as Facebook."

The business group also argues that Donato's decision extends the reach of the Illinois law to activity that occurs in outside states. Facebook had unsuccessfully argued that its photo-tagging feature isn't covered by the Illinois law because Facebook doesn't have servers in Illinois.

The Chamber of Commerce argues that Donato's decision could effectively force Facebook and other companies "to conform their nationwide operations to a patchwork of conflicting and overlapping state laws."

"Allowing Illinois’s decision about how to regulate instate conduct to trump other states’ views on this emerging area of law and technology ... would erode the clarity and predictability that U.S. businesses generally, and U.S. technology companies in particular, need to operate on a nationwide basis," the business organization writes.