A federal appeals court in California says non-Facebook users can't sue Facebook-parent Meta for allegedly violating their privacy rights under an Illinois biometrics privacy law, because, even though Facebook may have scanned the faces of non-users included in uploaded photos, Facebook never actually identified them.
On June 17, a three-judge panel of the U.S. Ninth Circuit Court of Appeals said a San Francisco federal judge was correct to pull the plug on the class action lawsuit brought by named plaintiff Clayton Zellmer.
The ruling likely closes out the court battle launched in Zellmer's name six years earlier.
In 2018, attorneys John C. Carey, of the firm of Carey Rodriguez LLP, of Miami; David P. Milian, of The Milian Legal Group, of Miami; and Albert Y. Chang, of Bottini & Bottini, of LaJolla, filed suit against Meta, then simply known as Facebook.
The lawsuit heavily overlapped with the claims first leveled in a class action filed first against Facebook on behalf of Illinois residents with Facebook accounts, accusing Facebook of allegedly violating the Illinois Biometric Information Privacy Act (BIPA) by allegedly wrongly scanning people's faces in photos uploaded to the social media platform and then identifying them through the platform's photo-tagging system.
Both lawsuits - one filed on behalf of Facebook users and the other, on behalf of non-users - asserted Facebook had violated provisions in the BIPA law allegedly requiring the company to notify Illinois residents and obtain their consent before scanning their faces in the photos. The lawsuits both sought potentially massive damages, possibly worth billions of dollars.
The lawsuit on behalf of Facebook users settled in 2021 for $650 million, generating $97.5 million for the lawyers from the firm of Edelson PC who brought that suit.
However, the lawsuit on behalf Zellmer and other non-Facebook users faced a harder path.
In 2022, U.S. District Judge James Donato tossed Zellmer's claims. In his rulings, Donato said "it would be patently unreasonable" to interpret BIPA to require companies like Facebook to abide by the law's notice and consent provisions for everyone, even non-users, on the chance their likeness might be included in a photo uploaded to and scanned by Facebook.
Zellmer's lawyers appealed that decision to the Ninth Circuit. And, while they managed to persuade the appellate judges that Donato's reasoning wasn't correct, the appellate judges still agreed that Donato had reached the right conclusion.
The Ninth Circuit decision was authored by Ninth Circuit Judge Ryan D. Nelson. Circuit judges Danielle J. Forrest and Gabriel P. Sanchez concurred in the ruling.
Nelson and his colleagues said Donato was wrong to conclude the Illinois law did not require Facebook to obtain consent and provide notice before identifying people by scanning their faces, even non-users.
And Nelson said the evidence shows Facebook scanned the faces of everyone imaged in every photo uploaded to their site, creating so-called numerical "face signatures."
But the judges said, in this instance, Zellmer and his legal team fell far short of proving Facebook ever actually identified Zellmer or any other non-users on its platform.
They noted Meta demonstrated that "no one - not even Facebook - can reverse-engineer the numbers comprising a given face signature to derive information about a person." And while Facebook users agreed to allow Facebook to link their image to their name, allowing Facebook to identify them in nearly every photo uploaded to their site, Facebook lacked the ability to similarly identify non-users, the judges said.
"Put differently, the recognizable indicator allows Meta only to identify that a particular image contains a face," Nelson wrote. "But this does not mean that Meta can, from that face, identify a person. Nor do the coordinates within the photos that can map out the size of a person's face show that Meta can, from those coordinates, identify an unknown person.
"... And because ... face signatures cannot identify, they are not biometric identifiers or biometric information as defined by BIPA."
The judges said, therefore, Zellmer had no standing under the law to continue his lawsuit, meaning the action should be over.
A spokesperson for Meta declined comment on the decision, referring The Record only to the court's opinion, authored by Nelson.
Meta was represented in the action by attorneys Lauren R. Goldman, Michael Brandon, and Lefteri J. Christos, of the firm of Gibson Dunn & Crutcher, of New York; Michael G. Rhodes and Whitty Somvichian, of Cooley LLP, of San Francisco; and John Nadolenco, of Mayer Brown LLP, of Los Angeles.