9th Circuit puts Facebook's facial recognition tech under privacy microscope

Facebook's use of facial recognition software to analyze photos and make tagging suggestions could potentially violate a personal privacy law—at least in Illinois—so says the 9th Circuit Court of Appeals in a new opinion. While Arizona does not have a Biometric Information Privacy Act (BIPA), like Illinois, two other states do, and this state may not be far behind.

This court opinion involving Illinois law could have far-reaching implications for Facebook and all other companies that use facial recognition to further their business interests. Moreover, it's a federal court saying "Whoa – state laws that protect biometric privacy will not be ignored"

Facial recognition technology creates a digital "template" of a facial image and compares the template to photographs of preexisting images of a face. The known photographs may be found in a variety of places, including driver's license databases, government identification records, mugshots, and/or social media accounts, such as Facebook.

Illinois' BIPA requires companies that collect biometric information to follow certain rules, like informing the person that their biometric information is being collected, getting a written release from the person to use the information and having a retention and destruction of collected biometric data schedule in place. Central to this case is the allegation that Facebook did not obtain a written release from the plaintiffs nor did it maintain a disclosed retention schedule or guidelines for destroying biometric identifiers.

Biometrics are biologically unique to individuals. Unlike social security numbers and passwords, most of us can't get a new face. Once an individual's biometrics have been compromised, they have no recourse and can become easy victims of identity theft. The 9th Circuit opinion helps to raise awareness about privacy concerns related to facial recognition technologies. Hopefully, our legislature will take a close look at these issues.

A three-judge panel of the 9th Circuit Court of Appeals has allowed the case to proceed as a class action meaning that potentially millions of Illinois residents who are Facebook users may become plaintiffs in the case. Facebook has now appealed and is asking for a 9th Circuit rehearing en banc. According to media reports, last week Facebook announced that it is discontinuing the photo tagging suggestions feature that suggests to someone's Facebook friends that they tag that person.

In the meantime, those looking to turn off facial recognition on their Facebook accounts can do so by going on their Facebook app/Settings & Privacy/Privacy Shortcuts/Control Facial Recognition and then clicking "no" in response to the question, "Do you want Facebook to be able to recognize you in photos and videos?"