As discussed in past posts about the long-running Facebook biometric privacy class action, users are challenging Facebook’s “Tag Suggestions” program, which scans for and identifies people in uploaded photographs for photo tagging. The class alleges that Facebook collected and stored their biometric data without prior notice or consent in violation of the Illinois Biometric Information Privacy Act (BIPA), 740 Ill. Comp. Stat. 14/1 et seq.  While other technology companies face BIPA actions over photo tagging functions, In Re Facebook is the headliner of sorts for BIPA litigation, being the most closely-watched and fully-litigated.

There have been a host of new developments in this case as the parties continued to joust when the prospect of a trial was looming.  Earlier this month, a California district court denied both parties’ motions for summary judgment and found that a “multitude of factual disputes” barred judgment as a matter of law for either side.   (In re Facebook Biometric Information Privacy Litig., No. 15-03747 (N.D. Cal. May 14, 2018)).  The court’s prior orders over the past several years provide the context for the denial of summary judgment and the court’s refusal to revisit procedural rulings. See: In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 1155 (N.D. Cal. 2016) (declining to enforce California choice of law provision in user agreement and applying Illinois law and refusing to find that the text of BIPA excludes from its scope all information involving photographs); Patel v. Facebook Inc., 290 F. Supp. 3d 948 (N.D. Cal. 2018) (declining to dismiss based on lack of Article III standing); In re Facebook Biometric Info. Privacy Litig., No. 15-03747, 2018 WL 1794295 (N.D. Cal. Apr. 16, 2018) (certifying Illinois user class and refusing Facebook’s renewed arguments to dismiss on procedural grounds).