A lawsuit accusing Facebook of violating an Illinois biometric privacy law by compiling a faceprint database could discourage companies from developing new technology, the Silicon Valley lobbying group Internet Association argues in a new court filing.
“Facial recognition technology can allow consumers to unlock their smartphones with a glance, streamline airport security screenings, and assist doctors in identifying rare genetic diseases,” the Internet Association writes in court papers filed Wednesday with the 9th Circuit Court of Appeals.
The organization adds that a recent ruling by U.S. District Court Judge James Donato, who allowed Facebook users to proceed with a privacy class-action against the company, could threaten new uses of biometric information -- including “uses that protect people, such as security cameras that can recognize strangers outside the home, fingerprint readers that prevent access to sensitive information, and facial recognition systems that can help locate missing children online.”
The Internet Association is weighing in on a battle dating to 2015, when several Illinois residents alleged that Facebook's photo-tagging feature violates the Illinois Biometric Privacy Act. The company'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 law 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. The law provides for fines of up to $5,000.
Facebook unsuccessfully urged Donato to dismiss the case, arguing that users couldn't show they were injured by the alleged practices, and that its photo-tagging feature isn't covered by the Illinois law, because Facebook doesn't have servers in Illinois. The company also unsuccessfully contended that the matter should not proceed as a class-action, arguing that users could not show they were injured by the alleged practices.
Donato rejected Facebook's arguments on all counts, ruling that the users could proceed with the litigation. Facebook appealed Donato's decision to the 9th Circuit, which put the case on hold.
Facebook filed written arguments with the 9th Circuit last week, but did so under seal -- meaning they are not yet publicly available. On Wednesday, the Internet Association -- which counts Facebook, Google, Amazon, eBay and other tech companies as members -- submitted a friend-of-the-court brief siding with Facebook.
The Internet Association says Donato shouldn't have allowed the case to proceed. “Biometric technologies serve many useful purposes in our society—from providing new authentication features that enhance security (like the ability to unlock one’s phone with a fingerprint), to facilitating the organization and sharing of photographs (like the ability to quickly retrieve photographs stored in a private account), to promoting health and wellness (like allowing for digital patient check-ins at the emergency room),” the group writes. “These are applications that millions of people already enjoy, and that offer great potential in the future. It is in no one’s interest that the lawful development and use of biometric technologies be artificially chilled.”
The organization specifically argues that the users should not be able to move forward without showing how they were injured by the alleged privacy violations. “Technology companies, like the Association’s members, are frequently subject to opportunistic lawsuits claiming vast statutory damages without real-world harm,” the organization writes. “Plaintiffs here readily admit that they have suffered no physical, financial, or other tangible or intangible injury. And they make no claim that their alleged biometric data was used for any purpose other than to suggest tags to people they had chosen to connect with.”
The group also argues that Donato's ruling effectively allows Illinois law to govern activity that occurs in other states. The Constitution provides that Congress can regulate interstate commerce; courts interpret that clause to mean that individual states usually can't govern commercial activity outside their borders.
The users who are suing are expected to file their legal papers by November 8.