• by Wendy Davis  @wendyndavis, December 4, 2019

Facebook is asking the Supreme Court to intervene in a class-action lawsuit brought by Illinois residents who allege the platform's photo-tagging feature violates their biometric privacy rights.

In a petition filed this week, Facebook argues that the people who are suing weren't injured by the photo-tagging feature, and therefore lack “standing” to proceed in federal court.

The company is urging the Supreme Court to review and reverse a decision issued in August by the 9th Circuit Court of Appeals, which allowed the lawsuit to proceed.

The battle dates to 2015, when a group of Illinois residents alleged in a class-action complaint that Facebook violates the Illinois Biometric Information Privacy Act.

That law requires companies to obtain written releases from people before collecting “face geometry” and other biometric data, including retinal scans and voiceprints. The measure provides for damages of 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. To accomplish this, Facebook allegedly analyzes the photos and creates a database of facial templates, without first notifying people or obtaining their consent.

Facebook argues in its petition to the Supreme Court that the plaintiffs didn't show how they were harmed by the alleged feature. (The Supreme Court has ruled in other cases that people can only sue in federal court if they have suffered a “concrete” injury.)

“Although plaintiffs claim that their privacy interests have been violated, they have never alleged -- much less shown -- that they would have done anything differently, or that their circumstances would have changed in any way, if they had received the kind of notice and consent they alleged that BIPA requires, rather than the disclosures that Facebook actually provided to them,” Facebook writes in its petition.

“One plaintiff testified that he likes Facebook’s Tag Suggestions feature and continues to use it, despite being fully aware of the alleged BIPA violation at issue in this suit,” the company adds.

Last year, U.S. District Court Judge James Donato in the Northern District of California sided against Facebook, ruling that the lawsuit could move forward as a class-action on behalf of all Facebook users in Illinois who had their faceprints stored by the company since 2011.

Facebook appealed that decision to the 9th Circuit, where the company argued that users weren't injured by the alleged practices.

The proceedings at the 9th Circuit drew significant attention from outside groups, with business organizations like the Internet Association and Chamber of Commerce siding with Facebook, and advocacy groups including the ACLU and Electronic Privacy Information Center weighing in with the Illinois users.

In August, the appellate judges rejected Facebook's argument. Among other reasons, they suggested that creating facial templates could have far-reaching consequences for consumers.

“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 is now arguing that the scenarios mentioned by the appellate judges are too speculative to warrant a lawsuit.

The appellate court reached its conclusion “without citing any allegations or record evidence that Facebook has used, will use, or even can use plaintiffs’ facial-recognition data for any of these purposes,” Facebook writes.