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United States District Court for the Northern District of California
April 16, 2018, Decided; April 16, 2018, Filed
Case No. 3:15-cv-03747-JD
[*540] ORDER RE CLASS CERTIFICATION
Re: Dkt. No. 255
In this privacy action against defendant Facebook, Inc. ("Facebook"), named plaintiffs Nimesh Patel, Adam Pezen, and Carlo Licata move for class certification. Dkt. No. 255. Plaintiffs' claims are sufficiently cohesive to allow for a fair and efficient resolution on a class basis. Consequently, the case will proceed with a class consisting of Facebook users located in Illinois for whom Facebook created and stored a face template after June 7, 2011.
The material facts of this case are reported in a number of prior orders. See, e.g., Patel v. Facebook Inc., 290 F. Supp. 3d. 948 , No. 3:15-cv-03747-JD, 2018 U.S. Dist. LEXIS 30727, 2018 WL 1050154, at *1 (N.D. Cal. Feb. 26, 2018) ["Spokeo order"]. Briefly summarized, plaintiffs are Facebook users who challenge its "Tag Suggestions" program, which scans for and identifies people [*541] in uploaded photographs to promote user tagging. Plaintiffs allege that Facebook collects and stores their biometric data without prior notice or consent in violation of their privacy rights and Sections 15(a) and 15(b) of the Illinois Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. ("BIPA"). Dkt. No. 40.
The salient facts for class certification are undisputed. Facebook [**4] launched Tag Suggestions on June 7, 2011. Dkt. No. 255 at 2. In broad strokes, Tag Suggestions is powered by a four-step facial recognition process. Initially, the software tries to detect faces (the "detection" step) and standardizes any detected faces for qualities like orientation and size (the "alignment step"). Dkt. No. 256-8 ¶¶ 13-17. For each face that is detected and aligned, Facebook computes a "face signature," which is a "string of numbers that represents a particular image of a face" (the "representation" step). Id. ¶ 18. Face signatures are then run through a stored database of user "face templates" to look for matches (the "classification" step). Id. ¶¶ 21-23. A face template is "a string of numbers that represents a boundary" between the face signatures of a given Facebook user and the face signatures of others, and is calculated based on that user's photographs. Id. If a computed face signature falls within the boundary described by a user's face template, Facebook suggests tagging the user. See Dkt. No. 284-20 at 37. Facebook represents, with no challenge from plaintiffs, that face signatures are not stored. Dkt. No. 256-8 ¶ 20. Only face templates are kept by Facebook. [**5]
Facebook's facial recognition technology is reliable but not foolproof. Facebook estimates that 90% of faces appearing in photographs are successfully detected, and of those detected faces, 85% are successfully aligned. Dkt. No. 284-9 ¶¶ 5-6. That means approximately 76% of faces appearing in photographs reach the representation step and have face signatures computed. Facebook states that in 2014, it was able to match around 67% of detected faces with users, which somewhat understates current matches because the rate has risen as the technology has matured. Id. ¶¶ 8-9.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
326 F.R.D. 535 *; 2018 U.S. Dist. LEXIS 63930 **; 2018 WL 1794295
IN RE FACEBOOK BIOMETRIC INFORMATION PRIVACY LITIGATION. THIS DOCUMENT RELATES TO: ALL ACTIONS
Subsequent History: Motion granted by, Motion denied by Patel v. Facebook, Inc., 2019 U.S. App. LEXIS 22247 (9th Cir. Cal., July 25, 2019)
Affirmed by Patel v. Facebook, Inc., 932 F.3d 1264, 2019 U.S. App. LEXIS 23673, 2019 WL 3727424 (9th Cir. Cal., Aug. 8, 2019)
Stay granted by Patel v. Facebook, Inc., 2019 U.S. App. LEXIS 32518 (9th Cir. Cal., Oct. 30, 2019)
Prior History: In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155, 2016 U.S. Dist. LEXIS 60046 (N.D. Cal., May 5, 2016)
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