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Patel v. Facebook Inc.

United States District Court, N.D. California

February 26, 2018

NIMESH PATEL, et al., Plaintiffs,
FACEBOOK INC., Defendant.



         In this putative class action case under the Illinois Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. (“BIPA”), named plaintiffs allege that defendant Facebook, Inc. (“Facebook”) unlawfully collected and stored their biometric data without prior notice or consent. Dkt. No. 40. Facebook asks to dismiss the case under Federal Rule of Civil Procedure 12(b)(1) and Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) (Spokeo I) on the ground that plaintiffs have failed to allege a concrete injury in fact. Dkt. No. 227. The motion is denied.


         This consolidated action originated as three separate cases originally filed in Illinois courts. Two of the cases were filed in federal court, while a third was filed in Illinois state court and removed to federal court by Facebook under the Class Action Fairness Act. Notice of Removal, Licata v. Facebook, Inc., No. 1:15-cv-04022 (N.D. Ill. filed May 6, 2015) (No. 1). The parties stipulated to transfer the cases to this Court, where they were consolidated into a single action. In re Facebook Biometric Info. Privacy Litig., 185 F.Supp.3d 1155, 1159 (2016). The consolidated class action complaint, Dkt. No. 40, is the operative complaint.

         The consolidated complaint alleges that Facebook “operates the largest social network in the world, with over one billion active users.” Dkt. No. 40 ¶ 1. The named plaintiffs, Nimesh Patel, Adam Pezen and Carlo Licata, use Facebook “to, among other things, upload and share photographs with friends and relatives.” Id. ¶¶ 2, 7-9.

         Plaintiffs' claims arise out of Facebook's “Tag Suggestions” program launched in 2010. Id. ¶ 3. A user “tags” other Facebook users and non-users by identifying them in photographs uploaded to Facebook. Id. ¶ 2. “Tag Suggestions” is intended to encourage more tagging. Id. ¶ 3. It scans uploaded photographs “and then identif[ies] faces appearing in those photographs.” Id. If the program “recognizes and identifies one of the faces appearing in [a] photograph, Facebook will suggest that individual's name or automatically tag them.” Id. In effect, the program associates names with faces in photos and prompts users to tag those people.

         Tag Suggestions uses “state-of-the-art facial recognition technology” to extract biometric identifiers from photographs that users upload. Id. ¶¶ 4, 22. Facebook creates and stores digital representations (known as “templates”) of people's faces based on the geometric relationship of facial features unique to each individual, “like the distance between [a person's] eyes, nose and ears.” Id. ¶ 23.

         Plaintiffs allege that Facebook collected users' biometric data secretly and without consent. Specifically, they allege that the Tag Suggestions program violated BIPA because Facebook did not: “[1] properly inform plaintiffs or the class in writing that their biometric identifiers (face geometry) were being generated, collected or stored; [2] properly inform plaintiffs or the class in writing of the specific purpose and length of time for which their biometric identifiers were being collected, stored, and used; [3] provide a publicly available retention schedule and guidelines for permanently destroying the biometric identifiers of plaintiffs and the class (who do not opt-out of ‘Tag Suggestions'); and [4] receive a written release from plaintiffs or the class to collect, capture, or otherwise obtain their biometric identifiers.” Id. ¶ 5. Plaintiffs seek declaratory and injunctive relief and statutory damages. Id. ¶ 6.


         I. Legal Standards

         “A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citations omitted).

         In a facial jurisdictional challenge, the Court takes all factual allegations in the complaint as true and draws all reasonable inferences in plaintiffs' favor. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). In a factual challenge, the Court “may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment” and “need not presume the truthfulness of the plaintiff's allegations.” Safe Air, 373 F.3d at 1039 (citations omitted). This discretion should be used with caution so that it does not usurp a merits determination. A “jurisdictional finding of genuinely disputed facts is inappropriate when the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action.” Id. (internal quotations and citations omitted).

         II. Article III Standing

         Federal courts are courts of limited jurisdiction, and the “case or controversy” requirement of Article III of the U.S. Constitution “limits federal courts' subject matter jurisdiction by requiring, inter alia, that plaintiffs have standing.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121 (9th Cir. 2010). As the Supreme Court recently reiterated, a plaintiff must demonstrate standing to sue by alleging the “irreducible constitutional minimum” of (1) an “injury in fact” (2) that is “fairly traceable to the challenged conduct of the defendants” and (3) “likely to be redressed by a favorable judicial decision.” Spokeo I, 136 S.Ct. at 1547. These requirements may not be abrogated by Congress. Id. at 1548. The specific element of injury in fact is satisfied when the plaintiff has “suffered ‘an invasion ...

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