United States: California Court Refuses To Dismiss Biometric Privacy Suit Against Facebook

The District Court for the Northern District of California recently issued what could be a very significant decision on a number of important digital law issues. These include: the enforceability of "clickwrap" as compared to "web wrap" website terms of use, the enforceability of a choice-of-law provision in such terms of use, and a preliminary interpretation of the Illinois Biometric Information Privacy Act (BIPA). In its opinion, the court found Facebook's terms of use to be enforceable, but declined to enforce the California choice of law provision and held that the plaintiffs stated a claim under BIPA. (See In re Facebook Biometric Information Privacy Litig., No. 15-03747 (N.D. Cal. May 5, 2016)).

As a result, the ruling could affect cases involving the enforceability of terms of use generally, and certainly choice of law provisions commonly found in such terms. The court's interpretation of BIPA is likely to be a consideration in similar pending biometric privacy suits. The decision should also prompt services to review their user agreements or otherwise reexamine their legal compliance regarding facial recognition data collection and retention.

As we noted in a prior post, Facebook has been named as a defendant in a number of lawsuits claiming that its facial recognition-based system of photo tagging violates BIPA. Plaintiffs generally allege that Facebook's Tag Suggestions program amassed users' biometric data without notice and consent by using advanced facial recognition technology to extract biometric identifiers from user photographs uploaded to the service. The various Illinois-based suits were eventually transferred to the Northern District of California and consolidated.

In its motion to dismiss the consolidated action, Facebook argued that the plaintiffs failed to state a claim under BIPA and that the California choice-of-law provision in its user agreement precluded the application of the Illinois statute.

As an initial matter, the court ruled that Facebook's user agreement was enforceable because the plaintiffs assented to the terms when they initially signed up for Facebook, and also agreed to the current user agreement after having continued to use Facebook after receiving notice of the current terms. Before reaching its conclusion, however, the court took some potshots at Facebook's online contracting process. While the exact methods of electronic contracting for each of the multiple plaintiffs were slightly different, the court examined most closely the method in use for the plaintiff Licata: "By clicking Sign Up, you are indicating that you have read and agree to the Terms of Use and Privacy Policy," with the terms of use presented by a conspicuous hyperlink. Expressing its skepticism of this relatively common method of online contracting, the court found that the use of a single "Sign Up" button to activate an account and accept the terms (as opposed to a separate clickbox to manifest the user's assent to the terms that is distinct from the "Register" button) "raises concerns about contract formation." In the end, the court conceded that Ninth Circuit precedent "indicated a tolerance for the single-click 'Sign Up' and assent practice," and that the Ninth Circuit itself had cited with approval a decision from the Southern District of New York that had found enforceable Facebook's contracting process. The court also commented that the dual-purpose box the plaintiff Licata had to click, located alongside hyperlinked terms, was "enough to create an enforceable agreement" – different enough from certain "web wrap" or "browsewrap" scenarios where a website owner attempts to impose terms upon users based upon mere passive viewing of a website.

However, despite upholding Facebook's electronic contracting process, the court declined to enforce the California choice-of-law provision in the user agreement and applied Illinois law because it found that Illinois had a greater interest in the outcome of this BIPA-related dispute.

As to the substantive arguments, the court found Facebook's contention that BIPA excludes from its scope all information involving photographs to be unpersuasive. In essence, BIPA regulates the collection, retention, and disclosure of personal biometric identifiers and biometric information. While the statute defines "biometric identifier" as "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry," it also specifically excludes photographs from that definition. Facebook (and even Shutterfly in its attempt to dismiss a similar suit regarding its photo tagging practices) attempted to use this tension or apparent ambiguity within the statute to escape its reach. However, viewing the statute as a whole, the court stated that the plaintiffs stated a claim under the plain language of BIPA:

"Read together, these provisions indicate that the Illinois legislature enacted BIPA to address emerging biometric technology, such as Facebook's face recognition software as alleged by plaintiffs.... 'Photographs' is better understood to mean paper prints of photographs, not digitized images stored as a computer file and uploaded to the Internet. Consequently, the Court will not read the statute to categorically exclude from its scope all data collection processes that use images."

The court also rejected Facebook's argument that the statute's reference to a "scan of hand or face geometry" only applied to in-person scans of a person's actual face (such as during a security screening) and that creating faceprints from uploaded photographs does not constitute a "scan of face geometry" under the statute. The court found this "cramped interpretation" to be against the statute's focus and "antithetical to its broad purpose of protecting privacy in the face of emerging biometric technology."

However, in allowing the suit to go forward, the court cautioned that discovery might elicit facts that could change the outcome:

"As the facts develop, it may be that "scan" and "photograph" with respect to Facebook's practices take on technological dimensions that might affect the BIPA claims. Other fact issues may also inform the application of BIPA. But those are questions for another day."

This makes the second court that has refused to shelve a BIPA-related case at the motion to dismiss stage (the first being the Illinois court in Norberg v. Shutterfly, a dispute that was settled this past April). The Facebook decision is notable in that the court refused to categorically rule that photo tagging, a function offered by multiple tech companies, fell outside the ambit of BIPA. Companies that offer online or mobile services that involve the collection of covered biometric information will ultimately have to decide how to react to this latest ruling, perhaps considering changes to their notice and consent practices, or deciding to not collect or store biometric data at all, or else take a wait and see approach as the Facebook litigation proceeds.

We will continue to closely watch the ongoing litigation, developments and best practices surrounding biometric privacy.

California Court Refuses To Dismiss Biometric Privacy Suit Against Facebook

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions