• by Wendy Davis  @wendyndavis, September 6, 2019

Facebook is asking a federal appellate court to reconsider a recent ruling that allows Illinois residents who use the platform to proceed with a class-action accusing the company of violating the state's biometric privacy law by creating a database of “faceprints.”

The social networking platform argues in papers filed Thursday that the Illinois users never alleged they were harmed by the company's use of facial recognition software. Therefore, Facebook says, the users have no grounds to sue in federal court.

“Plaintiffs do not claim that Facebook sold their data, shared it, used it for advertising, or inadequately protected it from breach,” Facebook argues in papers filed Thursday with the 9th Circuit Court of Appeals. “They do not dispute that Facebook’s Data Policy, to which they agreed, disclosed the feature. Nor do they claim that they would have done anything differently had they received different disclosures.”

A three-judge panel of the appellate court recently sided against Facebook and upheld a trial judge's decision allowing to the case to move forward as a class-action on behalf of Facebook users in Illinois whose faceprints were stored.

Facebook is now seeking a review before the entire court.

The dispute dates to 2015, when several Illinois residents alleged in a class-action complaint that Facebook was violating the state's Biometric Information Privacy Act by collecting "faceprints.”

That law -- considered one of the strongest privacy measures in the country -- requires companies to obtain written releases from people before collecting “face geometry” and other biometric data. Companies that violate the law can be sued for up to $5,000 per violation.

The complaint centers on Facebook's photo-tagging function, which draws on a vast trove of photos to recognize users' faces and suggest their names when they appear in photos uploaded by their friends. To accomplish this, Facebook allegedly analyzes the photos and creates a database of facial templates without first notifying people or obtaining their consent, according to the lawsuit.

Facebook recently said it was revamping the function to allow users to wield more control. It's not yet clear whether the new settings will address the plaintiffs' concerns. Their lawyer, Jay Edelson, declined to comment on Facebook's new controls, other than to say that his clients are “preparing for trial and eager to show our case to the jury.”

The social networking platform says in its new papers that the evidence developed in the trial court shows that the Illinois users weren't injured, and therefore lack “standing” to proceed in federal court.

“Plaintiffs testified that they have not been harmed by Tag Suggestions; one called it a 'nice feature' that he knowingly continues to use,” Facebook writes. “But they seek billions of dollars in aggregated damages on behalf of millions of users.”

Facebook also contends that the panel's ruling “throws open the door to class claims threatening draconian liability, creating unfair incentives to settle even weak cases.”