Facebook Seeks 'Emergency' Stay In Battle Over Faceprints

Facebook is asking a federal appellate court to issue an "emergency" stay in proceedings in a battle over whether the company's alleged creation of "faceprints" violates an Illinois privacy law.

"The Court should stay the case so that it may address the fundamental issues presented in the petition before Facebook and tens of millions of its users are irreparably harmed," Facebook writes in an "emergency motion" filed Friday with the 9th Circuit Court of Appeals.

The dispute dates to 2015, when several Illinois residents sued the company for allegedly violating an Illinois biometrics privacy law by collecting "faceprints." That law, passed 10 years ago, requires companies to obtain written releases from people before collecting “face geometry” and other biometric data.

U.S. District Court Judge James Donato in the Northern District of California recently allowed the case to proceed as a class-action on behalf of all Facebook users in Illinois who had their faceprints stored by the company since 2011. Earlier this month, Facebook asked the 9th Circuit to review Donato's decision to allow the case to proceed as a class-action. As of Friday afternoon, the appeals court hadn't ruled on that request.

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This week, Donato directed Facebook to notify all potential class members about the case via email and also by News Feed insertions and "jewel" notifications, which turn the "notification" icon at the top of users' home pages red.

Facebook says it asked Donato to stay his order regarding notifications to the class, but that he hasn't yet responded.

"Unless this Court intervenes immediately, tens of millions of Facebook users will receive class notice," Facebook says in its new motion to the 9th Circuit. "The reputational and economic costs to Facebook will be irreparable, particularly because the court has ordered Facebook to use its own service to notify people about a lawsuit against it."

Facebook also argues that staying Donato's order won't harm Illinois residents, and will avoid future confusion if it prevails in the appeal over Donato's decision to allow the case to proceed as a class action.

"If the Court does not grant a stay by May 30, over 20 million people will receive class notice that may need to be retracted or modified substantially," the company writes. "If class members receive a notice that appears to be from Facebook notifying them of an ongoing class action against Facebook, only to then receive another notice appearing to be from Facebook telling them that the class action no longer exists (or some variant thereof), they will be understandably confused and uncertain as to whether they can trust those mixed messages."

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