Legal battle over Facebook photo tagging moves a step further

A major legal battle over one of Facebook's most popular products is staring the tech titan in the face. A lawsuit that alleges that Facebook photo tagging infringes on user privacy registered a crucial early victory yesterday when the judge in Northern California District Court ruled against a motion by Facebook to dismiss.

The lawsuit alleges that Facebook's photo-tagging system violated user privacy by creating faceprints — geometric representations of a person's face — without explicit consent. Those faceprints are typically used to identify users to suggest tags for uploaded photos. The complaint in the case says that it is a violation of Illinois's Biometric Information Privacy Act, which forbids the collection of biometric identifiers like fingerprints or faceprints without a person's explicit consent.

Alvaro Bedoya of the Center on Privacy and Technology at Georgetown Law describes it beautifully and comprehensively- "If you run a bar, the law doesn’t prevent you from picking up my used pint glass, but it prevents you from pulling my DNA off it."

As per Facebook, the photo-tagging system is disclosed in the company's Data Policy and users can opt out of it, but it is unclear whether those measures will satisfy the legal definition of consent. "This lawsuit is without merit," a Facebook spokesperson had said in an earlier statement on the case, "and we will defend ourselves vigorously."

Importantly, yesterday’s decision focused on the question of whether the Illinois law is applicable to Facebook, one of the major legal hurdles facing the plaintiffs. According to Facebook's Terms of Service the company is only bound by California and federal laws, and the company had moved to dismiss the case on those grounds. But the judge ruled that the terms-of-service clause isn't sufficient to nullify the Illinois law. As a result, the plaintiffs have a valid claim under the Illinois biometrics law and the case can proceed.

This lawsuit is expected to have major implications for both Facebook and the social media industry at large. Facebook's photo-tagging system is one of its core products and one that has already been copied by competitors like Twitter and Google Photos. Those systems are already beginning to see similar challenges. Google was slapped with similar charges and a lawsuit in March, alleging that the photo-tagging system in Google Photos violates the same Illinois law.