On November 11, 2016, Facebook, Inc. (“Facebook”), filed an answer (“Answer”) in response to a consolidated class action complaint (“Complaint”) alleging that Facebook generates, collects, stores and uses “face geometry” information in violation of Illinois’ Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (the “BIPA”).  Among the 23 affirmative defenses alleged in its Answer, Facebook alleges that the BIPA is unconstitutional as sought to be applied by the plaintiffs because it would violate the dormant Commerce Clause.  

In other words, Facebook’s Answer alleges that the BIPA, as sought to be applied, amounts to legislation that improperly burdens or discriminates against interstate commerce, in violation of the express power granted in the U.S. Constitution to Congress to regulate interstate commerce.

The Complaint alleges that Facebook uses state-of-the-art facial recognition technology to support Facebook’s “Tag Suggestions” feature, which automates the process of identifying and, if the user chooses, tagging friends in the photos the user uploads.  The Complaint alleges that Facebook generates, collects, stores and uses “biometric identifiers” (which the BIPA defines to include a scan of “face geometry”) in violation of Sections 15(a) and 15(b) of the BIPA.

Section 15(a) of the BIPA requires that a “private entity in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual’s last interaction with the private entity, whichever occurs first.”

Under Section 15(b) of the BIPA, “[n]o private entity may collect, capture, purchase, receive through trade, or otherwise a person’s or a customer’s biometric identifier or biometric information, unless it first: (1) informs the subject or the subject’s legally authorized representative in writing that a biometric identifier or biometric information is being collected or stored; (2) informs the subject or the subject’s legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and (3) receives a written release executed by the subject of the biometric identifier or biometric information or the subject’s legally authorized representative.”

In addition to its affirmative defense of unconstitutionality, Facebook’s Answer challenges factual allegations made in the Complaint and asserts other affirmative defenses that challenge the availability and scope of relief on procedural and substantive grounds, including the appropriateness of class certification.

The Complaint was filed on August 28, 2015, in the U.S. District Court for the Northern District of California for Master Docket No. 3:15-cv-03747-JD.