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In re Facebook Biometric Info. Privacy Litig.

United States District Court for the Northern District of California

May 5, 2016, Decided; May 5, 2016, Filed

Case No. 15-cv-03747-JD

Opinion

 [*1158]  ORDER RE MOTION TO DISMISS AND SUMMARY JUDGMENT

In this putative class action under the Illinois Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. ("BIPA"), the named plaintiffs allege that defendant Facebook, Inc. ("Facebook") unlawfully collected and stored biometric data derived from their faces. Although the case is brought by Illinois residents under Illinois law, it is before this Court because the parties agreed to transfer it here from the United States District Court for the Northern District of Illinois.

In the motions before the Court, Facebook argues that plaintiffs [**3]  have failed to state a claim under BIPA and that a California choice-of-law provision in its user agreement precludes suing on an Illinois statute. Plaintiffs say the BIPA allegations do state a claim and that they never agreed to a choice of California law. Even if they had, plaintiffs contend Illinois law applies under traditional choice-of-law rules. After briefing and an evidentiary hearing on disputed fact issues underlying choice of law, the Court finds that Illinois law applies and that plaintiffs have stated a claim under BIPA.

BACKGROUND

As alleged in the complaint, Facebook "operates the largest social network in the world, with over one billion active users." Dkt. No. 40 ¶ 1. The three named plaintiffs, Nimesh Patel, Adam Pezen and Carlo Licata, are Facebook users who "use its platform to, among other things, upload and share photographs with friends and relatives." Id. ¶¶ 2, 7-9.

This case arises out of Facebook's "Tag Suggestions" program, which was launched in 2010. Id. ¶ 3. A "tag" on Facebook is when a user identifies by name other Facebook users and non-users who appear in the photographs that have been uploaded to Facebook. Id. ¶ 2. "Tag Suggestions" is intended to encourage [**4]  more tagging on Facebook. Id. ¶ 3. The program functions by scanning uploaded photographs "and then identifying faces appearing in those photographs." Id. If the program "recognizes and identifies one of the faces appearing in [a] photograph, Facebook will suggest that individual's name or automatically tag them." Id. In effect, the program puts names on the faces in photos and prompts users to tag those individuals.

To make the tagging suggestions, Facebook utilizes "state-of-the-art facial recognition technology" to extract biometric identifiers from the profusion of photographs users upload. Id. ¶¶ 4, 22. Facebook  [*1159]  creates and stores digital representations (known as "templates") of people's faces based on the geometric relationship of facial features unique to each individual, "like the distance between [a person's] eyes, nose and ears." Id. ¶ 23.

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185 F. Supp. 3d 1155 *; 2016 U.S. Dist. LEXIS 60046 **

IN RE FACEBOOK BIOMETRIC INFORMATION PRIVACY LITIGATION.

Subsequent History: Motion denied by In re Facebook Biometric Info. Privacy Litig., 2017 U.S. Dist. LEXIS 139051 (N.D. Cal., Aug. 29, 2017)

Motion denied by Patel v. Facebook Inc., 290 F. Supp. 3d 948, 2018 U.S. Dist. LEXIS 30727 (N.D. Cal., Feb. 26, 2018)

Related proceeding at Gullen v. Facebook, Inc., 2018 U.S. Dist. LEXIS 34792 (N.D. Cal., Mar. 2, 2018)

Class certification granted by In re Facebook Biometric Info. Privacy Litig., 2018 U.S. Dist. LEXIS 63930 (N.D. Cal., Apr. 16, 2018)

Summary judgment denied by In re Facebook Biometric Info. Privacy Litig., 2018 U.S. Dist. LEXIS 81044 (N.D. Cal., May 14, 2018)

Motion granted by, Stay granted by Patel v. Facebook, Inc., 2018 U.S. App. LEXIS 14129 (9th Cir. Cal., May 29, 2018)

Stay denied by In re Facebook Biometric Info. Privacy Litig., 2018 U.S. Dist. LEXIS 89396 (N.D. Cal., May 29, 2018)

Prior History: Norberg v. Shutterfly, Inc., 152 F. Supp. 3d 1103, 2015 U.S. Dist. LEXIS 175433 (N.D. Ill., Dec. 29, 2015)

CORE TERMS

user, choice-of-law, Terms, biometric, click, Privacy, assent, photographs, choice of law, disputes, notice, box, identifiers, words, scan, browsewrap, button, clickwrap, plaintiffs', technology, manifest, website, email, Tag, hyperlink, parties, updates, screen, motion to dismiss, summary judgment