BIPA Complainants’ Claims Compelled to Arbitration in Instagram Facial Imagery Capture Suit

On Monday, the Oakland, California federal court presiding over a biometric data privacy case opined that the plaintiffs assented to defendant Instagram’s terms of use and therefore agreed to arbitrate their claims. The decision comes after the Instagram users filed an amended complaint in the Illinois Biometric Information Privacy Act (BIPA) case contending that Facebook used facial recognition technology to illegally harvest the protected biometrics of Instagram users.

Specifically, the plaintiffs, two women and a minor suing through her mother, argued that Facebook violated BIPA by improperly using facial recognition technology on photographs of them that were uploaded to Instagram, so that Facebook could identify them in subsequent images. According to Facebook’s motion to compel arbitration, “[t]his claim is meritless: Facebook does not use face recognition to identify people in content uploaded to Instagram.”

Instead of moving to dismiss or answering the substantive allegations, Instagram’s parent company moved to compel arbitration, arguing that the plaintiffs simply brought their grievances in the wrong forum.

In this week’s opinion, the court agreed. Judge John S. Tigar considered whether the plaintiffs assented to Instagram’s terms of use, including the arbitration clause, and found in the affirmative because of their continued use of the app “after being notified of revised terms of use via an in-app notification in November 2020.”

In so ruling, the court weighed testimony from the plaintiffs essentially stating that they could not remember whether they saw the update and testimony from Facebook’s eDiscovery and litigation case manager pointing to records showing when the plaintiffs received those notifications.

The plaintiffs’ inability to remember whether they had seen the notifications were insufficient to raise a question of fact, the court wrote. Judge Tigar opined that contract principles would be rendered meaningless if parties who did not remember agreeing to them could use that as an excuse to bow out of their terms.

Similarly, the court rejected arguments that the in-app notification was insufficient to demonstrate assent. In analyzing the “browsewrap” update, the court said it was conspicuous enough to put users on notice of changes to the terms, and if they so wished, users could have clicked a “learn more” button that would have apprised them of the arbitration clause.

Having punted the claims to arbitration, the court directed the clerk to administratively close the case.

The plaintiffs are represented by Carlson Lynch LLP, Whitfield Bryson LLP, and Greg Coleman Law PC. Facebook is represented by Mayer Brown LLP and Cooley LLP.