Facebook Agrees to $550M Settlement of Illinois Class-Action Suit Over Facial Recognition

Judge rules tag suggest feature violated the state’s Biometric Information Privacy Act

Facebook’s tag suggest feature has had a bumpy ride since its introduction in December 2010.
Facebook’s tag suggest feature has had a bumpy ride since its introduction in December 2010. Getty Images

Facebook agreed to a $550 million settlement to resolve a class-action lawsuit in Illinois over alleged violations of that state’s Biometric Information Privacy Act triggered by the social network’s tag suggest facial-recognition feature.

The settlement was reached after Facebook’s unsuccessful petition to have the Supreme Court hear the case.

A spokesperson for the company said in a statement: “We decided to pursue a settlement as it was in the best interest of our community and our shareholders to move past this matter.”

The plaintiffs were represented by three law firms: Edelson PC filed the initial suit, and it incorporated similar cases filed by Labaton Sucharow and Robbins Geller Rudman & Dowd.

Edelson PC founder and CEO Jay Edelson said in a release: “Biometrics is one of the two primary battlegrounds, along with geolocation, that will define our privacy rights for the next generation.”

A $550 million fund will be established for Facebook users in Illinois who challenged the social network’s alleged violations of the Illinois Biometric Information Privacy. Edelson PC said it marks the largest cash settlement ever to resolve a privacy-related lawsuit.

Nathan Freed Wessler, staff attorney, American Civil Liberties Union’s Speech, Privacy and Technology Project, applauded the effort, saying in an email: “This case is a great example of how states can take the lead to protect their residents’ privacy rights despite Congress’ failure to do the same. This case also underscored the importance of giving consumers the right to sue privacy-violating companies in order to hold those companies accountable for their actions. Lawmakers nationwide should follow Illinois’ lead.”

Edelson PC said in its release that while the three law firms cannot predict how large the class will ultimately be, each class member is likely to receive $200 or more, and the settlement also included an injunctive relief that will require Facebook to obtain full consent from Illinois consumers before any collection of their biometric information takes place.

Michael Canty, head of the consumer cybersecurity group at Labaton Sucharow, said in the release: “This is a tremendous victory for the class. Here, Illinois enacted a statute not to thwart innovation, but to protect individuals’ privacy. As technology advances, corporations must be mindful of the privacy of their customers and, more important, comply with the law.”

The initial suit was filed in 2015, and Facebook said in its defense the following year that since it was based in California, the Illinois law should not apply, adding that facial recognition processing was not biometric data.

Judge James Donato rejected the company’s arguments, saying that its definition of biometric data was “cramped” and that granting Facebook immunity from Illinois law would represent “a complete negation” of the state’s law.

The case eventually made its way to the Ninth Circuit Court of Appeals last year, and the company’s request for an en banc hearing before all of the Ninth Circuit judges was rejected last October.

Paul Geller, head of the consumer protection arm of Robbins Geller Rudman & Dowd, also said in the release: “This case should serve as a clarion call to companies that consumers care deeply about their privacy rights and, if pushed, will fight for those rights all the way to the Supreme Court and back until they are justly compensated.”

Facebook’s tag suggest feature has had a bumpy ride since its introduction in December 2010.

In September 2012, it was turned off for all new users in the European Union and disabled for existing users the following month in order to comply with recommendations from Ireland’s Office of the Data Protection Commissioner. (Facebook’s European headquarters is located in that country.)

After a temporary worldwide suspension, Facebook re-enabled tag suggest in the U.S. in January 2013.

The feature quietly returned to Europe in September 2014, but it only worked on friends who were based in the U.S. and who enabled the tag suggest option in their profile settings.

Last September, Facebook said it was phasing out tag suggest in favor of a separate face-recognition setting it began introducing in December 2017.

david.cohen@adweek.com David Cohen is editor of Adweek's Social Pro Daily.