As we have previously noted (see below), Facebook has been named as a defendant in a number of lawsuits claiming that its facial recognition-based system of photo tagging violates the Illinois Biometric Information Privacy Act (BIPA).  In a separate putative class action filed in Illinois federal court that involves the tagging of an “unwilling” non-user without his permission, Facebook seeks dismissal on grounds similar to the arguments Facebook made in those cases. (See Gullen v. Facebook, Inc., No. 15-07681 (N.D. Ill. filed Aug. 31, 2015)).  In short, the plaintiff non-user claims that another Facebook member manually tagged him in a photo using Facebook’s Tag Suggestion feature and that, as a result, Facebook allegedly created and stored a faceprint of the plaintiff without his permission and in violation of BIPA. In its motion to dismiss, Facebook argues that the Illinois court has no jurisdiction over Facebook in this matter, particularly since the plaintiff was a non-user of its service.  In addition, Facebook contends that, regardless, the plaintiff’s claim under BIPA must fail for several reasons: (1) Facebook does not create a face template and perform “corresponding name identification” for non-users who are manually tagged using Tag Suggestions; (2) BIPA expressly excludes from its coverage “photographs” and “any information derived from photographs” and that the statute’s use of the term “scan of hand or face geometry” was only meant to cover in-person scans of a person’s actual hand or face (not the scan of an uploaded photograph).

What has become clear from the pending claims under BIPA is that statutory interpretation will not be easy. We will continue to closely watch the ongoing litigation surrounding biometric privacy – particularly since the specific Illinois statute in question has yet to be interpreted by a court with respect to facial recognition technology.

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