Justin Kay Comments on Ninth Circuit’s Ruling to Allow Biometric Privacy Claims against Social Media Giant

On August 8, 2019, the United States Court of Appeals for the Ninth Circuit rejected Facebook Inc.’s arguments that users alleging the company’s face-scanning practices violate Illinois’ Biometric Information Privacy Act (BIPA) had failed to assert the type of concrete injury necessary to establish Article III standing.

Law360 reports that the ruling is likely to widen the path for plaintiffs pursuing BIPA class actions by making it easier to get their claims into court and to certify their proposed classes.

Citing the Illinois Supreme Court’s holding in Rosenbach v. Six Flags, the Ninth Circuit held that plaintiffs could bring claims for violations of the statute’s notice and consent requirements without alleging a separate, real-world harm.

The industry publication outlined that not all courts have agreed that real-world harm isn’t required to mount BIPA litigation, referencing Santana v. Take-Two Interactive and Rivera v. Google.

“We may very well soon have three circuit court decisions with slightly different interpretation of what Spokeo means for BIPA cases, and that could provide a powerful reason for the Supreme Court to take up the issue,” said Kay.

Kay added that since the Take Two ruling, plaintiffs have been moving toward filing their biometric privacy claims in Illinois state court to avoid the Article III standing issue.

But now, with the Ninth Circuit coming out the opposite way, more of these cases — particularly those against big tech companies accused of unlawfully deploying biometric technology for commercial purposes — may be brought outside Illinois “now that plaintiffs are likely to feel more comfortable with regard to standing,” Kay said.