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Facebook fails to block $35bn class action lawsuit over facial recognition

Facebook is facing a trial over its alleged misuse of users’ facial recognition data, having failed to halt a class action lawsuit in its tracks.

The social media giant started scanning faces in photos in 2011 in order to provide photo tag suggestions, asking users if certain friends were included in newly-uploaded photos.

A class action lawsuit was filed against Facebook over the feature in 2015, alleging that citizens of Illinois did not consent to having their photos scanned with facial recognition software and were left unaware of how long the data would be retained. Under Illinois’ Biometric Information Privacy Act, Facebook could face a fine of between $1,000 and $5,000 for each of its seven million Illinois-based users, with a maximum fine of $35bn (many times higher than the multibillion dollar fine recently negotiated with the Federal Trade Commission over Facebook’s privacy violations). The minimum fine is applied in cases of negligence while the maximum fine may be applied if the violations of the law are “intentional or reckless”.

The law – which was introduced to prevent the mishandling of biometric data and hand control back to consumers – is the first of its kind in the US. It has resulted in class action lawsuits being raised against Google (which was eventually dismissed), photography service Shutterfly, and ad-free video platform Vimeo.

Facebook has argued that its users should not be permitted to bring class action lawsuits which would make it liable to pay vast fines and requested an en banc hearing before the entire bench of ninth circuit judges, which could have prevented the case going to trial. Its request was denied by a three-judge panel. The case will now go to trial unless the Supreme Court intervenes. Facebook share prices dropped more than two per cent upon the announcement.

One of the three judges, US Circuit Judge Sandra Ikuta, commented that it appeared “likely” that Facebook’s collection of facial recognition data would make it possible to identify users in surveillance footage, or to unlock a biometrically-locked phone.

“We conclude that the development of a face template using facial-recognition technology without consent (as alleged here) invades an individual’s private affairs and concrete interests,” Ikuta wrote in the ruling, acquired by Courthouse News.

In a statement to TechCrunch, a Facebook spokesperson said: “Facebook has always told people about its use of face recognition technology and given them control over whether it’s used for them. We are reviewing our options and will continue to defend ourselves vigorously.”

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