Facebook’s legal team made a Hail Mary last week to delay its biometric class action lawsuit, and it has now scored a touchdown: A panel of judges on the 9th Circuit Court of Appeals has agreed to review whether the lawsuit really should qualify for class action status.
The decision essentially pauses the judicial proceedings that have now been underway in California for over a year. It actually all stems from an initial lawsuit filed in 2015, when an Illinois resident sued Facebook under the terms of the state’s biometric privacy law over its use of facial recognition in automatically tagging individuals in photos uploaded to the social media platform. Facebook had the case transferred to California as per its terms of service, and promptly filed for the case to be dismissed as Illinois law could not apply in a different state.
US District Judge James Donato saw things differently, and decided to let the case go forward; then, in April of this year, he agreed to give it class action status, meaning Facebook could wind up owing damages to millions of users whose facial biometrics were collected without their consent.
Facebook sought to challenge that decision with a request to have the 9th Circuit review it earlier this month, but it wasn’t until last week that it issued an emergency motion to that end, prompted by an impending deadline to notify its Illinois users about the class action lawsuit. In its filing, the company pleaded that if the 9th Circuit didn’t intervene by May 30th, “over 20 million people will receive class notice that may need to be retracted or modified substantially.” Perhaps fearing that they too would be bombarded by notifications through their own Facebook accounts, the 9th Circuit judges complied.
This isn’t the end of the story, of course. The 9th Circuit could very well end up validating Donato’s decision to categorize the lawsuit as class action. If it does, a lot of people in Illinois will know about it soon after.
May 31, 2018 – by Alex Perala