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An Illinois law is proving a thorn in Facebook\u2019s side as a class action lawsuit, alleging mishandling of biometric information, moves toward trial. The latest developments in the case have the social network objecting against releasing or even admitting the existence of all manner of data, but the plaintiffs aren\u2019t taking \u201cobjection\u201d for an answer.<\/p>\n
The case revolves around a 2008 state law known as the Biometric Information Privacy Act<\/a>. BIPA basically makes it illegal to collect or use biometric data, such as a \u201cscan of hand or face geometry,\u201d without rigorous disclosure of methods, intentions and guarantees regarding that data. The class action suit, filed in mid-2015, alleges that Facebook has knowingly failed to perform this disclosure for its many Illinois users.<\/p>\n Separate suits have been filed against Shutterfly, Snapchat and Google. The Shutterfly suit was settled, and Snapchat\u2019s sent to arbitration. The Google case is technically ongoing, but the company argues that analysis of digital photos doesn\u2019t count as biometric data, nor could an Illinois law prevent a California company from performing such analysis outside Illinois. Facebook has likewise fought the suit, aiming for dismissal under similar arguments.<\/p>\n The clear-headed Judge James Donato determined in May that while proceeding under California law was something users had agreed to, it was unenforceable, as it would amount to \u201ca complete negation\u201d of non-California protections such as those found in BIPA. And as for the idea that a \u201cscan\u201d must take place in person, he called that interpretation \u201ccramped\u201d and noted that the law itself is so worded as to potentially include such \u201cemerging\u201d methods as bulk digital analysis. So the case proceeded, and the parties at odds have fallen to squabbling over the details<\/a>.<\/p>\nSpecifically, the plaintiffs say that Facebook must provide documents regarding the lobbying effort against BIPA that suddenly began after the case failed to be dismissed \u2014 State Senator Link proposed an amendment (at the urging of such lobbyists, opponents alleged) that would exclude digital images from BIPA provisions. The amendment was never adopted, but we intend to look into it nevertheless, as its changes would have been suspiciously beneficial to the companies under threat from the law as it stands \u2014 and who claimed to not be subject to it anyway. Documents from a case in Ireland with some similarities are also requested, as are some related to patents and source code surrounding Facebook\u2019s facial recognition technology.<\/p>\n Facebook, for its part, has objected to just about every word in the dictionary. In a document filed in September, Facebook objects to the definitions of: biometric identifiers, faceprint, face Template, face recognition, face finding, stores, name and location, user, created, uploaded, relevant time period, Facebook, defendant, you, your<\/em>, and in fact all other \u201cdefinitions\u201d and \u201cinstructions\u201d<\/em> in the plaintiff\u2019s interrogatories.<\/p>\n Facebook denies the implication that it has created, stored or used any biometric identifiers whatsoever, even though it\u2019s beyond a doubt that it does, by any reasonable definition of the terms. It also claims that it does not maintain records on whether photographs contain people, a claim that seems at odds with basic facts regarding how its tagging and facial recognition processes work.<\/p>\n There are legitimate objections, as well, of course: a request for a printed copy of the source code is indeed \u201cfrivolous,\u201d for instance, and although Facebook tracks location, it doesn\u2019t necessarily know the legal residence of a given user, so requests for that (critical for a class action relying on state jurisdiction) are also unable to be fulfilled.<\/p>\n The company also offers some rather thin-sounding excuses, dismantled convincingly by the plaintiffs, as to why it can\u2019t provide information on its lobbying efforts against the law it is accused of violating, as well as documents related to the Ireland case. And, as the plaintiffs point out, what few documents it has provided are often heavily redacted. A public version of one redacted document was found, in fact, and the redacted information was far from confidential \u2014 the plaintiffs argue \u2014 highly relevant. It doesn\u2019t speak well for the other redactions, they say.<\/p>\n
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<\/a>I am not a lawyer, of course, but the court records show Facebook in a poor light: evasive, pedantic and stalling for time. It is understandably wary of exposing the inner workings of its facial recognition systems to an unsympathetic judge in a state with strong protections against practices it is conceivably (some would say assuredly) taking part in. And the repercussions of a company whose services transcend borders being forced to conform to a state law like this could be far-reaching.<\/p>\n