• by Wendy Davis  @wendyndavis, December 16, 2019

An influential right-wing group is backing Facebook in a battle over allegations that its photo-tagging feature violates an Illinois privacy law.

In a friend-of-the-court brief filed Friday, the Washington Legal Foundation urges the Supreme Court to hear Facebook's appeal of lower court rulings that allow Illinois residents to proceed with a class-action complaint against the company.

The Washington Legal Foundation argues that the people who are suing weren't injured by Facebook's tagging feature, and therefore lack “standing” to proceed in federal court.

“Every injury in law is not an injury in fact,” the organization writes, adding that the claims against Facebook reflect “abstract” concerns.

The battle dates to 2015, when Illinois residents Carlo Licata, Adam Pezen and Nimesh Patel claimed in a class-action complaint that Facebook's photo-tagging feature violates the state's Biometric Information Privacy Act. That law requires companies to obtain written releases from people before collecting “face geometry” and other biometric data. The measure provides for damages of up to $5,000 per violation -- which could amount to as much as $30 billion in this case.

Licata and the others allege that Facebook's photo-tagging draws on a vast trove of photos to recognize users' faces and suggest their names. Facebook allegedly accomplishes this by analyzing uploaded photos and creating a database of facial templates, without first notifying people or obtaining their consent.

Facebook argued that the lawsuit should be dismissed for several reasons, including that the Illinois residents couldn't show how they were harmed by the alleged practice. A federal district court judge and a three-judge panel of the 9th Circuit Court of Appeals rejected Facebook's position.

The 9th Circuit judges suggested in their ruling that 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 wrote. “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 Supreme Court to review and reverse that ruling, arguing that the judges' reasoning is too speculative.

The Washington Legal Foundation adds in its brief that the ruling could hurt other businesses by encouraging so-called “no-injury” lawsuits.

“The Ninth Circuit’s embrace of the no-injury class action exponentially increases the likelihood of opportunistic, lawyer-driven lawsuits,” the group writes.

The conservative organization adds that companies have an incentive to settle lawsuits rather than risk potentially ruinous liability.

“A class action in which the plaintiffs need not show actual harm is a powerful cudgel for securing lucrative settlements,” the group writes.

The Supreme Court could decide as early as January whether to hear Facebook's appeal.