Tag friends in a photo online, and Facebook and other social media companies could get sued. But Facebook has now asked a California judge to declare unconstitutional an Illinois biometrics privacy law under which such lawsuits have been brought against Facebook and other social media and digital photo-sharing sites.

Despite the fact that Facebook is a social media website that operates in a global capacity and doesn’t answer to any one state’s laws – except for California where the company’s headquarters is based – the lawsuit was brought citing the Illinois Biometric Information Privacy Act, as plaintiffs living in Illinois argued the tagging system on Facebook violated their online privacy and scanned their faces without their consent. Under BIPA, express consent is required in Illinois to have such scanning happen online.

As this current lawsuit could set precedent for the future, it is a case that is being watched by many, especially lawyers that deal with cyber law. One such lawyer is Linn F. Freedman, a Rhode Island attorney for the firm of Robinson+Cole, who writes about privacy laws and the internet.

“It’s a case of first impression,” she told the Cook County Record.

This is not the first time a lawsuit has been filed citing legislation concerning biometric privacy laws. A chain of popular tanning salons has settled out of court claims brought under the law, while photo sharing website Shutterfly was recently the defendant in a lawsuit concerning biometric legislation. Popular app operator SnapChat has also been sued. The tanning salon, L.A. Tan, and both social media websites were sued in Illinois under BIPA. L.A. Tan had been sued for its storage of scanned fingerprints from customers using its salons.

It has also been argued that the Illinois BIPA may be unconstitutional. But Freedman isn't so certain.

“One could argue that it doesn’t cross a line because it protects facial identity and fingerprints,” said Freedman.

As for future litigation involving social media, a better solution, rather than settling claims out of court or fighting the law outright, may be better, more narrowly defined legislation that better balances the need to protect privacy with the realities of technology.

“A law that protects consumers’ information and isn’t overly broad might be acceptable,” said Freedman.

Since the case was moved to California, it is possible the suit against Facebook could be dismissed. Facebook is also fighting for that to happen, as they have argued Illinois laws such as BIPA should not apply to California-based companies, like them. 

“Facebook has filed a motion to dismiss the entire case, and Facebook could be successful in that,” said Freedman.

Regardless of the outcome of the Facebook photo tagging case, it could result in various outcomes outside of the courtroom This would be especially true if a judge declares the Illinois law unconstitutional as part of the litigation against Facebook. 

“It’ll be important for the case after that and the case after that,” said Freedman.

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