Privacy & Information Security Law Blog

On June 14, 2019, the United States Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of Facebook, holding that the company did not violate the Illinois Biometric Information Privacy Act (“BIPA”) (740 ICLS ¶¶ 15, 20).

The appeal concerned a photograph that had been uploaded to a Facebook organizational page of a local news service, not an individual Facebook user’s page. The appellant claimed that Facebook had subjected the photograph to facial recognition technology to capture biometric data without the appellant’s consent.

The Ninth Circuit’s brief memorandum opinion turned on the summary judgment evidence.  Based on that evidence, “[n]o reasonable jury could conclude that Facebook” had violated the Illinois privacy law. Facebook employee declarations and internal emails showed that facial recognition was not enabled for the organizational page when the photograph was uploaded.  Specific evidence also demonstrated that facial recognition was not applied to the solitary photograph at issue. The court further discounted as irrelevant appellant’s evidence that all photographs uploaded by individual Facebook users were subject to facial recognition because the contested photograph was uploaded to an organizational page, not a user page.