California Facebook Decision At Odds With Illinois Courts

On February 26, 2018, the United States District Court for the Northern District of California denied Facebook, Inc.'s motion to dismiss the plaintiffs' consolidated class action complaint for failure to allege a concrete injury in fact under Federal Rule of Civil Procedure 12(b)(1). Plaintiffs alleged Facebook's "Tag Suggestions" violated the Illinois Biometric Information Privacy Act ("BIPA"), 740 ILCS 14/1 et seq., by collecting users' biometric data secretly and without consent. Facebooks' Tag Suggestions program uses "state-of-the-art facial recognition technology" to create and store digital representations called "templates" of people's faces based on the geometric relationship of an individual's unique facial features, such as, "the distance between [a person's] eyes, nose and ears." The basis of the court's review was whether the complaint's allegations were insufficient on their face to invoke federal jurisdiction. Citing Spokeo Inc. v. Robins, 136 S. Ct.