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In re Facebook Biometric Info. Privacy Litig. - 185 F. Supp. 3d 1155 (N.D. Cal. 2016)


While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract. The touchstone for all contracts, whether Internet digital or old school paper, is mutual manifestation of assent, whether by written or spoken word or by conduct.


In the present putative class ction under the Illinois Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. ("BIPA"), the named plaintiffs alleged that defendant Facebook, Inc. ("Facebook") unlawfully collected and stored biometric data derived from their faces. In the motions before the Court, Facebook argued that plaintiffs 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. On the other hand, plaintiffs contended that BIPA allegations did state a claim and that they never agreed to a choice of California law. Even if they had, plaintiffs contended that Illinois law applied under traditional choice-of-law rules.


  1. Did the plaintiffs fail to state a claim under the metric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq (“BIPA”)?
  2. Should the complaint be governed by Illinois law?


1) No. 2) Yes.


As regards the first issue, the Court noted that BIPA regulated the collection, retention, and disclosure of personal biometric identifiers and biometric information by major national corporations, among others. The law defined “biometrics” as a “retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry." In the case at bar, plaintiffs alleged that Facebook scans user-uploaded photographs to create a "unique digital representation of the face based on geometric relationship of their facial features." That allegation fell within the scan of face geometry stated in the statute. The Court accepted as true plaintiffs' allegations that Facebook's face recognition technology involved a scan of face geometry that was done without plaintiffs' consent. Consequently, they have stated a plausible claim for relief under BIPA. As for the second issue, although the Court held that a choice-of-law agreement was formed between plaintiffs and Facebook, a contractual California choice-of-law provision will not be enforced because the State of Illinois has a materially greater interest in the determination of the matter.

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