• by Wendy Davis  @wendyndavis, September 17, 2019

A recent decision that allows Illinois residents to proceed with a privacy lawsuit against Facebook will result in “devastating harm” to other companies, the U.S. Chamber of Commerce says in new court papers.

If left in place, the decision “will make it easier for plaintiffs’ counsel to pursue even meritless class actions, with devastating harm for businesses generally and technology companies in particular, discouraging investment and innovation, and ultimately harming the public,” the country's largest business organization writes in a friend-of-the-court brief filed Monday with the 9th Circuit Court of Appeals.

The group is weighing in on Facebook's request that the full 9th Circuit decide whether the company must face suit for allegedly violating an Illinois biometric privacy law by compiling a database of faceprints. 

The Illinois Biometric Information Privacy Act, 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 legal battle dates to 2015, when several Illinois residents alleged in a class-action complaint that Facebook violated that law with its photo-tagging function. That feature 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.

A trial judge ruled last year that the case could proceed. Facebook then appealed that decision to the 9th Circuit.

Last month, a three-judge panel of the 9th Circuit rejected all of Facebook's arguments for dismissal, including its contention that the Illinois residents didn't suffer the kind of concrete injury that would justify a lawsuit.

Those judges said in the ruling that creating faceprints could have wide-ranging consequences.

“Once a face template of an individual is created, Facebook can use it to identify that individual in any of the other hundreds of millions of photos uploaded to Facebook each day, as well as determine when the individual was present at a specific location,” the appellate judges said. “Taking into account the future development of such technology ... it seems likely that a face-mapped individual could be identified from a surveillance photo taken on the streets or in an office building. Or a biometric face template could be used to unlock the face recognition lock on that individual’s cell phone.”

Facebook recently asked the full 9th Circuit to review that decision for several reasons, arguing that residents who are suing previously testified they were not injured by Facebook's photo tagging feature.

The Chamber of Commerce is among the organizations backing that request. The organization argues that the panel's ruling allows a a “'no-injury' class action seeking potentially billions of dollars in damages to go forward without requiring any showing of real-world harm.”

Technology companies “may be especially vulnerable to abusive no-injury class actions relating to privacy,” the Chamber writes.

“As this case shows, millions of Internet users interact every day with technology companies to conduct transactions, share content, and connect with people all over the world,” the group writes. “The resulting huge volume of daily users and interactions exposes technology companies to enormous class actions for minor, technical violations.”

The plaintiffs are expected to file their next round of arguments with the 9th Circuit by September 26.