In re Facebook Biometric Information Privacy Litigation
185 F. Supp. 3d 1155
N.D. Cal.2016Background
- Plaintiffs (Illinois residents) allege Facebook’s “Tag Suggestions” used facial-recognition to create and store biometric face templates without the written notice or consent required by the Illinois Biometric Information Privacy Act (BIPA). Plaintiffs seek injunctive relief, declaratory relief, and statutory damages on behalf of a putative class.
- The cases were transferred from the Northern District of Illinois and consolidated in this Northern District of California action; Facebook moved to dismiss and for summary judgment based on a California choice-of-law clause in its user agreement and on the argument that BIPA excludes photographs or data derived from them.
- The court held an evidentiary hearing on whether each named plaintiff assented to Facebook’s user agreement (formation of the contract and notice of a later amendment), receiving testimony and deposition excerpts; the court treated the contract-formation dispute as a summary-judgment/fact-finding matter for the judge.
- The court found by a preponderance that each plaintiff manifested assent to Facebook’s user agreement (some via a checkbox, others via a single "Sign Up" click) and received notice of the 2015 updated Terms, including a California choice-of-law clause.
- Applying California choice-of-law rules (because this is a California forum), the court declined to enforce the contractual California choice-of-law provision under Restatement (Second) § 187 analysis: BIPA embodies a fundamental Illinois policy protecting biometric privacy, and Illinois has a materially greater interest in applying its law to its residents than California does in enforcing the clause.
- On the 12(b)(6) motion, the court held plaintiffs sufficiently pleaded that Facebook’s face-scan templates fall within BIPA’s definition of a "scan of face geometry," rejecting Facebook’s argument that BIPA categorically excludes photographs or information derived from them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs assented to a Facebook user agreement containing a California choice-of-law clause | Plaintiffs contend they did not agree to the user agreement (or the amended terms) | Facebook contends plaintiffs assented at registration and continued use after notice, so California law governs | Court found by preponderance that each plaintiff assented and received notice of amended Terms, so they are parties to the agreement |
| Whether the court may resolve factual disputes about assent in advance of a jury | Plaintiffs argued such factual disputes must be left to a jury | Facebook argued the judge should resolve choice-of-law fact disputes | Court held judge may resolve factual disputes subsumed in a choice-of-law determination without violating the Seventh Amendment |
| Whether the California choice-of-law clause should be enforced | Plaintiffs argued Illinois law should apply because BIPA embodies a fundamental Illinois policy and Illinois has a materially greater interest | Facebook argued the contractual choice-of-law should be enforced under California law and §187 | Court applied California law and §187 analysis, ruled the clause should not be enforced because applying California law would defeat a fundamental Illinois policy and Illinois has the materially greater interest; Illinois law governs |
| Whether BIPA covers biometric identifiers derived from photographs (sufficiency of pleading) | Plaintiffs alleged Facebook creates face-geometry templates from uploaded images, which fall within BIPA’s definition of scans of face geometry | Facebook argued BIPA excludes photographs and information derived from them and thus does not apply | On Rule 12(b)(6) standard, court held plaintiffs plausibly alleged scans of face geometry and declined to read a categorical exclusion for photographs into BIPA; complaint survives |
Key Cases Cited
- Markman v. Westview Instruments, Inc., 517 U.S. 370 (court decides subsidiary factual issues relevant to legal questions)
- Nguyen v. Barnes & Noble Inc., 763 F.3d 1171 (9th Cir. 2014) (browsewrap vs. clickwrap framework; notice and manifestation of assent analysis)
- Washington Mut. Bank v. Superior Court, 24 Cal.4th 906 (Cal. 2001) (test for enforceability of contractual choice-of-law under Restatement § 187)
- Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (federal courts in diversity apply forum state’s choice-of-law rules)
- Nguyen-cited Southern District precedent approving single-click assent, Fteja v. Facebook, (reflected in Nguyen), 841 F. Supp. 2d 829 (S.D.N.Y. 2012) (single-click/hyperlink practices can support assent)
- Nautilus Ins. Co. v. Reuter, 537 F.3d 733 (7th Cir. 2008) (district court must resolve factual disputes bearing on choice-of-law)