On January 21, 2020, the U.S. Supreme Court denied Facebook’s petition for a writ of certiorari to consider whether consumers alleged a sufficiently concrete injury-in-fact in a biometric privacy lawsuit.

• A group of Illinois Facebook users filed a putative class action against the company, claiming that a photo-tagging feature that recognized users’ faces and suggested their names violates Illinois’s Biometric Information Privacy Act (“BIPA”), which prohibits companies from obtaining biometric data on consumers without their permission.
• The district court certified a class and Facebook appealed, claiming the plaintiffs lacked Article III standing because they failed to allege a concrete injury-in-fact.
• The Ninth Circuit affirmed, explaining that the plaintiffs had adequately alleged Article III standing because the use of facial recognition technology without users’ consent was an invasion of a concrete privacy interest that the BIPA was intended to protect. Moreover, the court held that Facebook’s alleged violations actually harmed or posed a material risk of harm to the plaintiffs’ privacy interests. (You can read more about the Ninth Circuit’s opinion in our September 2019 issue.)
• In its certiorari petition, Facebook asserted that the plaintiffs had “never alleged—much less shown—that they would have done anything differently, or that their circumstances changed in any way, if they had received the kind of notice and consent they alleged that BIPA requires, rather than the disclosures that Facebook actually provided to them.”
• The Supreme Court declined to review the Ninth Circuit’s decision. The Court has not yet meaningfully grappled with the Article III standing issues raised by its landmark decision in Spokeo, Inc. v. Robbins in 2016.
• Facebook subsequently settled with the plaintiffs for $550 million.
• The case is Facebook, Inc. v. Patel, and you can read Facebook’s petition here.