The scope of the Illinois Biometric Information Privacy Act (BIPA) has been reaffirmed by a district court and court of appeals’ decision to throw out one Facebook user’s claims that his “biometric identifiers” through uploaded photos were collected unlawfully by Meta. The allegation fell down due to a lack of substance, with a judgement reached in Meta’s favour.
The claimant argued that Facebook lacked a written policy explaining its retention period for collected data after other people known to him uploaded his photos to Facebook.
In reaching the decision, the district court emphasised the “practical impossibility” that Meta could comply with BIPA if consent had to be obtained from everyone whose photo is uploaded on the platform before employing Tag Suggestions.
Although Facebook treats users’ photos as “face signatures” to identify who uses the platform, it is not a form of real identification which the statute states. The panel, who provided a second view on the case, disagreed with the district court’s reasons for granting the summary judgment and sought material to indicate Meta violated BIPA’s plain terms or not. There was no allegation on record from the claimant describing the incident.
The panel maintained that Zellmer never explained how he or any of his associates were affected in a “concrete and particularised” way.
On summary judgment, the district court dismissed the Section 15(b) claim, reasoning that “it would be patently unreasonable to construe BIPA to mean that Facebook was required to provide notice to, and obtain consent from, nonusers who were for all practical purposes total strangers to Facebook, and with whom Facebook had no relationship whatsoever.”
