SAN FRANCISCO — Facebook won't be able to quickly delete a class action lawsuit accusing it of violating an Illinois privacy law by tagging people in photographs posted by other users on the social media platform.

However, the decision may have limited implications for other lawsuits against companies accused of breaking the Illinois Biometric Information Privacy Act, an attorney says.

Russell Perdew
Russell Perdew | Locke Lord

A federal judge in the U.S. District Court for the Northern District of California denied Facebook's motion to dismiss the action first lodged in Illinois, but transferred to San Francisco federal court under Facebook's change-of-venue provision in its user agreement.

The plaintiffs and class members are seeking $5,000 in statutory damages for each intentional or reckless violation of the BIPA, or $1,000 in statutory damages per negligent violation of the BIPA. 

Additionally, the plaintiff and class members are seeking to force Facebook to provide a “publicly available retention schedule or guidelines for permanently destroying its users’ biometric identifiers and biometric information and... stop collecting, storing and using [the] plaintiff’s and the class members’ biometric identifiers and biometric information without first obtaining their informed written consent,” according to the complaint.

However, the judge's decision may not apply much beyond this case, said P. Russell Perdew, a partner at Locke Lord LLP.

“The implications are limited for a couple reasons," Perdew said.  "First, the facts of this case are unique because the plaintiffs here claimed they did not know their biometric information was being taken because facial scans were allegedly being created from photographs without the plaintiffs’ knowledge.”.

Numerous BIPA filings have been filed in recent years, but many have been dismissed for lack of tangible injury, including Vigil v. Take-Two Interactive in New York, Rosenbach v. Six Flags Entertainment Corp. in the Illinois Second District Appellate Court and McCollough v. Smarte Carte Inc. in Chicago federal court.

"Federal courts can only hear cases involving 'concrete,' not hypothetical, injuries," Perdew said. "The court decided that Facebook allegedly taking and using [the] plaintiff’s biometric information without the plaintiff’s knowledge was a concrete injury even if [the] plaintiff did not claim to have lost money as a result."

Perdew said the court's refusal to dismiss may not apply to most BIPA lawsuits.

“In most of the recent lawsuits, a plaintiff knows their biometric information is being taken and used because it involves in-person fingerprint scanning," he said. "So it’s not clear this decision will apply to most of the cases being filed... Defendants still have a number of other arguments to make, including that the alleged BIPA violation did not 'aggrieve' the plaintiff, which BIPA requires before a plaintiff can sue.”

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