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Patel v. Facebook, Inc.

United States Court of Appeals for the Ninth Circuit

June 12, 2019, Argued and Submitted, San Francisco, California; August 8, 2019, Filed

No. 18-15982


 [*1267]  IKUTA, Circuit Judge:

Plaintiffs' complaint alleges [**3]  that Facebook subjected them to facial-recognition technology without complying with an Illinois statute intended to safeguard their privacy. Because a violation of the Illinois statute injures an individual's concrete right to privacy, we reject Facebook's claim that the plaintiffs have failed to allege a concrete injury-in-fact for purposes of Article III standing. Additionally, we conclude that the district court did not abuse its discretion in certifying the class.

Facebook operates one of the largest social media platforms in the world, with over one billion active users. Packingham v. North Carolina, 137 S. Ct. 1730, 1735, 198 L. Ed. 2d 273 (2017). About seven in ten adults in the United States use Facebook.3

When a new user registers for a Facebook account, the user must create a profile and agree to Facebook's terms and conditions, which permit Facebook to collect and use data in accordance with Facebook's policies. To interact with other users on the platform, a Facebook user identifies another user as a friend and sends a friend request. If the request is accepted, the two users are able to share content, such as text and photographs.

For years, Facebook has allowed users to tag their Facebook friends in photos [**4]  posted to Facebook. A tag identifies the friend in the photo by name and includes a link to that friend's Facebook profile. Users who are tagged are notified of the tag, granted access to the photo, and allowed to share the photo with other friends or "un-tag" themselves if they choose.

 [*1268]  In 2010, Facebook launched a feature called Tag Suggestions. If Tag Suggestions is enabled, Facebook may use facial-recognition technology to analyze whether the user's Facebook friends are in photos uploaded by that user. When a photo is uploaded, the technology scans the photo and detects whether it contains images of faces. If so, the technology extracts the various geometric data points that make a face unique, such as the distance between the eyes, nose, and ears, to create a face signature or map. The technology then compares the face signature to faces in Facebook's database of user face templates (i.e., face signatures that have already been matched to the user's profiles).4 If there is a match between the face signature and the face template, Facebook may suggest tagging the person in the photo.

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932 F.3d 1264 *; 2019 U.S. App. LEXIS 23673 **; 104 Fed. R. Serv. 3d (Callaghan) 760; 2019 WL 3727424

NIMESH PATEL, Individually and on Behalf of All Others Similarly Situated; ADAM PEZEN; CARLO LICATA, Plaintiffs-Appellees, v. FACEBOOK, INC., Defendant-Appellant.

Subsequent History: Rehearing denied by, En banc Patel v. Facebook, Inc., 2019 U.S. App. LEXIS 31146 (9th Cir. Cal., Oct. 18, 2019)

US Supreme Court certiorari denied by Facebook, Inc. v. Patel, 2020 U.S. LEXIS 538 (U.S., Jan. 21, 2020)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. 3:15-cv-03747-JD. James Donato, District Judge, Presiding.

In re Facebook Biometric Info. Privacy Litig., 326 F.R.D. 535, 2018 U.S. Dist. LEXIS 63930 (N.D. Cal., Apr. 16, 2018)

Disposition: AFFIRMED.


biometric, privacy, concrete, identifiers, right to privacy, user, template, technology, common law, collection, district court, tag, private entity, retention, injury-in-fact, intrusion, class certification, extraterritoriality, plaintiffs', storage, scan, courts, stored, expiration date, class action, facial-recognition, predominance, safeguarding, transactions, certifying

Civil Procedure, Special Proceedings, Class Actions, Certification of Classes, Constitutional Law, The Judiciary, Case or Controversy, Standing, Appeals, Appellate Jurisdiction, Interlocutory Orders, Standards of Review, De Novo Review, Preliminary Considerations, Justiciability, Standing, Injury in Fact, Elements, Governments, Legislation, Statutory Remedies & Rights, Business & Corporate Compliance, Computer & Internet Law, Privacy & Security, State Regulation, Computer & Internet Law, Civil Actions, Invasion of Privacy, Torts, Intentional Torts, Invasion of Privacy, Intrusions, Abuse of Discretion, Clearly Erroneous Review, Appellate Review, Interpretation, Prerequisites for Class Action, Superiority