Jonathan K. Levine
Pritzker Levine LLP
On April 3, 2018, Northern District of California District Court Judge James Donato dismissed a putative class action asserting privacy claims under the Illinois Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. (“BIPA”), by collecting plaintiff’s biometric identifiers without notice of consent.Gullen v. Facebook, Inc., Case No. 16-cv-00937-JD, 2018 WL 1609337 (N.D. Cal. Apr. 3, 2018).The factual pattern leading up to Judge Donato’s dismissal order was unique, in that the case was based upon a single photograph of plaintiff Gullen that had been uploaded to an organizational page. Facebook provided uncontested evidence that it does not use facial recognition software on photos uploaded to organizational accounts.Id at *2.
Gullen brought this putative class action asserting Illinois state law privacy claims under BIPA.Plaintiff alleged that Facebook violated BIPA by collecting his biometric identifiers without notice or consent via Tag Suggestions – Facebook’s facial recognition-based system of photo tagging.Facebook moved for summary judgment on a number of grounds.Gullen, 2018 WL 1609337 at *1. In a “supplemental brief,” Facebook presented an additional argument that Gullen’s claims were based on a single photograph uploaded to an organizational page as opposed to a personal page.Id.Facebook asserted in support of its motion for summary judgment that the company did not use its facial recognition technology for organizational pages. Id.
Gullen’s Claims, Being Based on One Photo Uploaded to an Organizational Page, Are Dismissed For Lack of Evidence of Privacy Violations
The undisputed factual record before the court led to only one conclusion.In the course of summary judgment briefing and at oral argument, Gullen conceded that his BIPA claims were based solely on a photograph taken of him that had been uploaded to an organizational account – a Facebook page run by an organization, rather than an individual.Id. at *1.
In support of its motion for summary judgment, Facebook submitted a declaration from a software engineer stating that “facial recognition is not performed on photos that are posted on business or other organization Facebook Pages.”Id. at *2.Gullen criticized the engineer’s declaration as “self-serving”, but was unable to put forward evidence to contradict the engineer’s statements. Id.
In addition to this testimony, Facebook had produced documents in discovery supporting the engineer’s statement that Facebook does not apply facial recognition to photographs uploaded to Facebook organizational pages.Id. at *2.Gullen did not provide evidence to dispute this issue:a deposition of the engineer did not elicit contrary testimony, and Gullen did not put forward a counter declaration or expert testimony to contradict the engineer’s declaration. Id.Gullen also was unable to provide or point to contradictory evidence in the record with respect to Facebook’s organizational page practices.Id. at *3.
On the record before it, and finding no genuine dispute as to whether Facebook runs facial recognition on photographs uploaded to organizational pages, Judge Donato granted summary judgment in favor of Facebook, solely as to plaintiff Gullen.Id. at *3.
While Gullen was dismissed on factual grounds that were specific to this particular plaintiff’s claim, the companion In Re Facebook Biometric Privacy Info. Litigation class action involving Facebook users, N.D. Cal. Case No. 15-cv-03747-JD, also pending before Judge Donato, remains ongoing and raises important legal issues surrounding BIPA, including the scope of the statute as its relates to uploaded photographs and the sufficiency of Facebook’s notice and consent procedures, as well as constitutional issues regarding the extraterritorial reach of BIPA to activities and could-based transactions alleged to occur outside the State of Illinois.
On February 26, 2018, Judge Donato denied Facebook’s motion to dismiss the In Re Facebook Biometric Privacy Info. Litigation class action for failure to allege concrete injury as required by Spokeo, Inc.v. Robins, 136 S.Ct. 1540 (2016).On April 16, 2018, Judge Donato granted plaintiffs’ motion for class certification.The certified class includes “Facebook users located in Illinois for whom Facebook created and stored a face template” since June 2011.Facebook’s motion for summary judgment directed to this class action is pending.