Supreme Court declines to hear Facebook facial recognition case

The Supreme Court on Tuesday declined to take up a high-profile court battle over whether users can sue Facebook for using facial recognition technology on their photos without proper consent.

The high court rejected Facebook’s bid to review the case, meaning the social media giant will likely have to face the multibillion-dollar class-action lawsuit over whether it violated an Illinois privacy law. 

The case, Facebook vs. Patel, hinges on a question over whether Facebook violated Illinois law when it implemented a photo-tagging feature that recognized users’ faces and suggested their names without obtaining adequate consent. Facebook argued to the Supreme Court that the class-action case should not be allowed to proceed because the group of users have not proven that the alleged privacy violation resulted in “real-world harm.” 

“Although plaintiffs claim that their privacy interests have been violated, they have never alleged — much less shown — that they would have done anything differently, or that their circumstances would have changed in any way, if they had received the kind of notice and consent they alleged that [the Illinois law] requires, rather than the disclosures that Facebook actually provided to them,” Facebook wrote in its petition.

The Illinois biometric privacy law, the most expansive of its kind, requires companies to obtain written consent from people before collecting sensitive information about their “face geometry.” Users can sue companies for up to $5,000 per privacy violation. 

Business groups and tech companies for years have argued that lawsuits over privacy violations and data breaches should be dismissed because it is difficult to prove substantial harm. The Supreme Court still has not contended with the issue head-on, and federal courts of appeal are deeply divided over how much harm plaintiffs have to show to bring their privacy claims to federal court.

The 9th Circuit Court of Appeals last year ruled that Facebook has to face the lawsuit over whether it violated user privacy with its facial recognition tools. Circuit Court Judge Sandra Ikuta ruled against Facebook’s claims that the plaintiffs had failed to adequately prove they had been harmed by the face scanning.

“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,” she wrote.

Facebook insists that it always disclosed how it was using facial recognition technology and gave users the option to turn it off. And last September, the company overhauled the automatic photo-tagging suggestions setting, replacing it with a face recognition tool that explicitly asks users whether they want to turn on the feature.

The company also ran into trouble over its facial recognition technology during the Federal Trade Commission’s  (FTC) highly-publicized investigation into the company’s privacy practices. Earlier this summer, the company settled with the FTC for a record-shattering $5 billion fine and a litany of new privacy safeguards, including a requirement that Facebook obtain affirmative consent from users before using facial recognition tech.