Tech Tips, 1019 WYBJ, Vol. 42 No. 6. 40

• Author: Blake A. Klinkner, J.
• Position: Vol. 42 6 Pg. 40

Tech Tips

No. Vol. 42 No. 6 Pg. 40

Wyoming Bar Journal

October, 2019

Facial Recognition Technology, Biometric Identifiers, and Standing to Litigate Invasions of Digital Privacy

Blake A. Klinkner, J.

In August 2019, the United States Court of Appeals for the Ninth Circuit became the first appellate court in the United States to declare that a social media website’s use of facial recognition software to identify and track individuals may violate the individuals’ privacy interests and provide the individuals with standing to sue over their rights to privacy. As individuals grapple with ways to protect online privacy and curb perceived abuses of privacy by tech giants, the Ninth Circuit’s opinion may open the door for individuals to seek vindication of their rights to privacy through the filing of tort actions across the country.

In Patel v. Facebook, Inc., the plaintiffs filed a class action lawsuit against Facebook alleging that Facebook violated provision of the Illinois Biometric Information Privacy Act (“BIPA”) which prohibits a party from collecting, storing, and using biometric identifiers for an individual without first obtaining a written release for the biometric identifier and without establishing a retention schedule that requires the permanent destruction of the biometric information.^[1] Te BIPA defines a “biometric identifier” to include any scanning of a person’s “face geometry.”^[2] Since at least 2010, Facebook has employed facial recognition software to scan uploaded photos in order to create “face signatures” and “face maps” which help Face-book to identify and track the individuals contained within the photos.^[3] In order to create these face signatures and maps, Facebook’s facial recognition software scans pictures to “extract[] the various geometric data points that make a face unique, such as the distance between the eyes, nose, and ears.”^[4] Facebook then uses this information to “identify that individual in any of the other hundreds of millions of photos uploaded to Facebook each day, as well as determine when the individual was present at a specific location.”^[5] Facebook sought dismissal of the class action lawsuit, arguing that “the plaintiffs’ complaint describes a bare procedural violation of BIPA rather than injury to a concrete interest, and therefore plaintiffs failed to allege that they suffered an injury-in-fact that is sufficiently concrete for...