In re Facebook Biometric Information Privacy Litigation
2016 WL 2593853, 185 F. Supp. 3d 1155, 2016 U.S. Dist. LEXIS 60046 (2016)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A contractual choice-of-law provision will not be enforced if the chosen state's law is contrary to a fundamental policy of another state, and that other state has a materially greater interest in the determination of the issue. The Illinois Biometric Information Privacy Act (BIPA) represents such a fundamental policy, and Illinois has a greater interest in its application to its residents than California has in enforcing the contract.
Facts:
- Nimesh Patel, Adam Pezen, and Carlo Licata are Illinois residents who created and used Facebook accounts.
- Between 2005 and 2009, each plaintiff, upon signing up for Facebook, was presented with a user agreement that included a choice-of-law provision designating California law.
- In 2010, Facebook launched its "Tag Suggestions" program, which scans photographs uploaded by users to identify faces appearing in them.
- The program utilizes facial recognition technology to extract biometric identifiers, creating a digital representation or "template" of a person's face based on the unique geometric relationship of their facial features.
- Based on these stored facial templates, Facebook's program suggests the names of individuals for users to tag in photographs.
- The plaintiffs' biometric data was collected and stored for the Tag Suggestions program without written notice, their written consent, or the publication of a data retention policy.
- In 2015, Facebook updated its Terms of Use, which maintained the California choice-of-law provision, and notified users of the update via email and on-site notifications.
- The plaintiffs continued to use their Facebook accounts after receiving notice of the updated terms.
Procedural Posture:
- Three separate putative class action lawsuits were filed by Nimesh Patel, Adam Pezen, and Carlo Licata against Facebook, Inc. in the U.S. District Court for the Northern District of Illinois.
- The parties stipulated to transfer the cases to the U.S. District Court for the Northern District of California.
- Upon transfer, the court consolidated the three cases into a single action.
- Plaintiffs filed a consolidated class action complaint, which became the operative complaint.
- Facebook filed a motion to dismiss under Rule 12(b)(6), arguing that the claims were barred by a California choice-of-law provision and that the complaint failed to state a claim under BIPA.
- The court converted the choice-of-law part of the motion to dismiss into a motion for summary judgment and scheduled an evidentiary hearing to resolve disputed facts about contract formation.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a choice-of-law provision in Facebook's user agreement, which selects California law, preclude Illinois residents from suing under the Illinois Biometric Information Privacy Act (BIPA)?
Opinions:
Majority - James Donato
No. A contractual choice-of-law provision selecting California law does not preclude Illinois residents from suing under BIPA because Illinois has a fundamental policy of protecting its citizens' biometric data and a materially greater interest in the dispute. First, the court found that all three plaintiffs formed a contract with Facebook and assented to its user agreement, including the choice-of-law provision, through a combination of clickwrap and browsewrap methods upon registration and by their continued use of the platform after being notified of updates. However, applying California's choice-of-law rules (which follow the Restatement (Second) of Conflict of Laws § 187), the court determined the provision was unenforceable in this context. The court found that BIPA represents a 'fundamental policy' of Illinois, evidenced by the state legislature's express findings on the unique, permanent nature of biometric identifiers and the public's need for protection. Enforcing the California choice-of-law provision would be contrary to this policy in the 'starkest way possible' because California has no equivalent law, which would entirely negate Illinois's protections for its residents. Finally, Illinois has a 'materially greater interest' in the matter than California; Illinois's interest is to protect its citizens' statutory privacy rights, while California's interest in enforcing the contract of a resident corporation is less significant and more general. The court also denied Facebook's motion to dismiss, holding that BIPA's exclusion for 'photographs' does not cover scans of face geometry derived from digital photographs, as such a reading would undermine the statute's core purpose of regulating modern biometric technology.
Analysis:
This decision significantly curtails the reach of choice-of-law provisions in standard online user agreements, particularly when they conflict with strong, state-specific statutory protections for consumers. It affirms that unique state privacy laws like BIPA can constitute a 'fundamental policy' sufficient to override a contractual choice of law, preventing corporations from using their terms of service to nullify such protections. This ruling provides a key precedent for plaintiffs seeking to enforce their rights under specific state consumer or privacy statutes in the face of boilerplate contract terms selecting a different state's less-protective law. Furthermore, the court's interpretation that BIPA's 'photograph' exclusion does not apply to scans derived from digital images was an early, influential reading that prevented a potential loophole from gutting the statute's effectiveness against modern facial recognition technology.
Unlock the full brief for In re Facebook Biometric Information Privacy Litigation