Plaintiff Carlo Licata argues that he and countless other Illinois residents have had their rights violated under the Illinois Biometric Information Privacy Act (BIPA) by Facebook's "Tag Suggestions" feature. That feature is powered by facial recognition technology, and operates without the consent of those being tagged.
Licata wants the Cook County court to declare that Facebook is in violation of BIPA, ordering it to halt its practice, and to award statutory damages to the class, which has yet to be certified.
As he alleges in his civil complaint, which was filed on April 1, 2015:
Unfortunately, Facebook actively conceals from its users that its Tag Suggestion feature actually uses proprietary facial recognition software to scan their uploaded photographs, locate their faces, extract unique biometric identifiers associated with their faces, and determine who they are. For instance, Facebook doesn’t disclose its wholesale biometrics data collection practices in its privacy policies, nor does it even ask users to acknowledge them. Instead, Facebook merely hints at the underlying functionality behind Tag Suggestions—only describing the feature’s use of facial recognition software on remote sections of its website. With millions of its users in the dark about the true nature of this technology, Facebook secretly amassed the world’s largest privately held database of consumer biometrics data.
Facebook did not respond to Ars’ request for comment but an unnamed spokesperson told the Chicago Tribune that the suit was "without merit." The company has yet to formally respond to the lawsuit.
“Not consistent with the Illinois law”
Lior Strahilevitz, a law professor at the University of Chicago that it was hard to evaluate the merits of the case at this stage.
"Some Facebook users probably like the tagging features quite a bit, some probably find it creepy, and some users likely have both reactions simultaneously," he told Ars by e-mail."Facebook should have data about how many people opt out of photo tagging, but as a rule of thumb privacy-related default settings are sticky, so even if most people haven’t opted out that doesn’t tell us what Facebook customers would prefer if forced to choose between tagging and no tagging... I suspect that some Facebook users have found the feature to be a really handy tool and some others have suffered embarrassment as a result of automated photo tagging. Facebook no doubt believes that the benefits to its users outweigh the harms, but the way the Illinois statute is written, the benefits of automated tagging won’t get Facebook off the hook if they have failed to abide by their statutory obligations."
Strahilevitz told Ars that Yana Welinder, a lawyer and legal fellow with Stanford University, wrote a journal article in 2012 in the Harvard Law Review touching on this exact issue with respect to Facebook, Illinois, and a similar law on the books in Texas.
Welinder, in turn, told Ars that Licata’s case is the first of its kind that she is aware of.
"I would be surprised if this case actually got litigated and expect it to get resolved in a settlement," she e-mailed Ars. "But generally, Facebook has been relying on their privacy policy and settings to allow users to opt-out, which is not consistent with the Illinois law. The law requires opt-in consent for collection of biometrics and specifically calls out ‘face geometry.’
"Privacy is often balanced against other values, like free speech or efficiency. If Facebook hopes that the Tag Suggest feature will help users interact, they should make it opt-in. Ironically, by ‘moving fast and breaking things,’ Facebook may be triggering knee-jerk responses to many different implementations of face recognition technology. Some of them may be much more meaningful than the Tag Suggest feature."
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