TechFreedom Sides With Facebook, Urges Supreme Court To Hear Biometric Privacy Case

A recent ruling that allows Illinois residents to bring a class-action against Facebook over its facial recognition technology could result in a wave of new lawsuits against technology companies, the libertarian group TechFreedom is telling the Supreme Court.

“If uncorrected, this decision threatens to unleash a wave of costly, 'no-harm' class action 'strike suits,'” TechFreedom writes in papers filed Friday.

The group adds that the risk of facing such lawsuits “may impact Facebook’s decision to offer useful products, including the facial recognition service at issue here,” and could also “discourage innovative newcomers and dampen the relentless cycle by which past Internet giants have seen their dominance disrupted.”

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The organization makes the argument in a friend-of-the-court brief supporting Facebook's request that the Supreme Court intervene in the biometric privacy battle.

The fight centers on the Illinois Biometric Information Privacy Act, which 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.

In 2015, a group of Illinois residents alleged in a class-action complaint that Facebook's photo-tagging function violates the Illinois law.

Facebook's photo-tagging 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 argued that the complaint should be dismissed on the grounds that the Illinois residents weren't injured by the alleged violation.

A three-judge panel of the 9th Circuit Court of Appeals recently sided against Facebook and allowed the class-action lawsuit to proceed.

“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,” the appellate judges wrote. “Or a biometric face template could be used to unlock the face recognition lock on that individual’s cell phone.”

Last month, Facebook asked the Supreme Court to review that ruling. Among other arguments, the company says the scenarios proposed by the appellate judges are too speculative to warrant a class-action lawsuit.

TechFreedom agrees, arguing that people shouldn't be able to sue in federal court over “speculative, insubstantial harms.”

“Controlling information relating to one’s self is something important to many individuals. The law, as academics, legal institutions, and courts acknowledge, still requires a factual showing of perceptible harm,” the group writes.

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