The privacy suit that alleged Facebook violated Illinois’ Biometric Information Privacy Act (BIPA) for its use of facial-recognition software to tag friends in photos will be heard in the Supreme Court. In December, Facebook petitioned the Supreme Court for a writ of certiorari, arguing plaintiffs were not harmed from its use of their biometrics and did not show harm in their case. Facebook’s petition also calls for the Supreme Court needs to hear the case because of a disagreement between various appellate circuits over whether plaintiffs must show that harm was caused by Facebook’s BIPA violation. The Supreme Court denied the petition on January 21, which will return the case for trial before the Northern District of California. The trial was originally set for 2018; a status conference is now set for February of this year.
Leading plaintiff Nimesh Patel filed the suit in 2015, claiming Facebook violated BIPA. The class action complaint stated that Facebook used the biometrics for photo-tagging without consent and without informing users how long the data would be stored. Facebook notified users and gave them the opportunity to opt out of the feature, however, it did not obtain consent or notice as required by BIPA.
Facebook could pay $1,000 for each negligent violation and $5,000 for each knowing violation. The Class could encompass 7 million people, causing damages to cost Facebook more than $35 billion. If Facebook loses, it could set precedent for similar companies to be sued for BIPA violations.