Facebook To Face Class Action Over Facial Recognition

Apr 17, 2018
Originally published on April 17, 2018 7:05 am
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NOEL KING, HOST:

A federal judge in San Francisco has ruled that Facebook users can go ahead with a class action lawsuit against the company. The lawsuit alleges that Facebook broke the law by creating facial templates for users without their permission. NPR's Aarti Shahani is with us. Good morning, Aarti.

AARTI SHAHANI, BYLINE: Good morning.

KING: All right. Let's talk about these plaintiffs. Who are they, and what is a facial template and why are they upset about it?

SHAHANI: OK. So they are three Facebook users from Illinois, and they sued under a state law from 2008 called the Biometric Information Privacy Act. And it says that private entities like Facebook are not allowed to collect or retain people's biometrics, which can include things like retina scans, fingerprints, DNA, face geometry, without written consent. And so the wisdom of that is, like, you know, biometrics are unique. If a bank's computers get hacked, right, you get to have a new account or credit card number. If Facebook is hacked, you can't get a new face. So, you know, the plaintiffs who filed, it was three years ago, they said Facebook was harvesting face templates and tagging their faces for more than a billion people worldwide without informed, written consent. And they're seeking up to $5,000 in damages for each violation. So that would be billions of dollars total.

KING: Billions of dollars. How does Facebook feel about all this?

SHAHANI: (Laughter), well, you know what Facebook has to say in court is actually very different from what their CEO Mark Zuckerberg has said when he went to Capitol Hill last week. You know, there he was over and over saying he was sorry for his company's missteps and suggested his main fault was being too idealistic or too optimistic. But in court, in this case, his lawyers have been arguing, hey, no one was harmed in this procedure, and, arguably, you know, studying and tagging faces when pictures are uploaded is a service that lots of users like. It's been available for several years, and you can opt out of it if you want to. Facebook actually did manage to get the case moved to California, which is their home turf. But the judge, it's U.S. District Court James Donato in San Francisco, he says a class action is the most efficient way to resolve the dispute, and so it can proceed. A company spokesperson says in an email that Facebook is reviewing the ruling, that the case has, quote, "no merit," and they'll defend against it vigorously.

KING: And they have defended against lawsuits vigorously in the past, right? This isn't the first class action lawsuit against Facebook. Is this one different somehow?

SHAHANI: Yeah. You know, it's not. And what stands out to me about this case isn't really the plaintiffs or Facebook so much as the judge. And so let me take you back seven years, OK? Back then Facebook was trying to get more users to connect to each other on Facebook, OK, to make it more of a go-to place. So the company, they did a little trick. They'd comb through your emails - I'm going to say you use Gmail - and they'd match the people you're emailing with their existing user base.

So, like, let me give you an example. Say I'm emailing Grandpa, but he's not my quote-unquote "friend." Well, Facebook would go and ping him with my profile photo and say, hey, do you want to be friends with her? It was called the Friend Finder feature, and lots of users didn't like it. They thought it was creepy. They were like, why are you talking to my grandfather? So they sued, saying that Facebook was using their images for commercial purposes. Then Facebook made a couple of counter arguments like, hey, you users accepted the terms, but also, you guys aren't celebrities. There's no commercial value to your pictures. There's no cognizable injury. And in that case, the judge sided with Facebook. So, you know, what struck me yesterday, it was like, the harm argument they've been making for years didn't manage to kill the class. Maybe the times are changing.

KING: All right. Aarti, very quickly, the latest NPR/NewsHour/Marist poll is out. Gives us some insight into how the public feels about Facebook. How do people feel?

SHAHANI: Yeah. Well, the numbers are stark. Only 12 percent of people polled have confidence in Facebook to protect privacy and personal information.

KING: Twelve percent. All right. We're going to have to leave it there. NPR's Aarti Shahani, thanks so much.

SHAHANI: Thank you. Transcript provided by NPR, Copyright NPR.