Emma Gallimore Feb. 22, 2016, 12:15pm


CHICAGO (Legal Newsline) - A federal judge has dismissed a class action lawsuit against Facebook after the California-based social media site claimed there was a lack of personal jurisdiction in Illinois.

The plaintiff in the case, Fredrick William Gullen, filed the complaint alleging violations of the Illinois Biometric Information Privacy Act. Gullen is not a Facebook user, but he alleged that his image was uploaded to the site and that his biometric identifiers and biometric information was collected, stored and used by Facebook without his consent.

The Illinois Biometric Information Privacy Act, implemented in 2008, regulates the collection, use, and storage of biometric identifiers and biometric information such as scans of face or hand geometry. The act specifically excludes photographs, demographic information, and physical descriptions.

The first known biometrics case in Illinois was also a class action against an online company. Shutterfly, a company that allows users to upload and print photos or use them to personalize items, moved to have the case against it dismissed on the grounds that the Biometric Information Privacy Act does not apply to photographs, but the judge disagreed and allowed the case to move forward.

On Feb. 1, Shutterfly moved for reconsideration or, as an alternative, that the case be certified for an interlocutory appeal. This would allow Shutterfly to appeal the decision immediately rather than wait for a final court ruling.

In the Facebook case, no ruling has been made on whether the information on Facebook counts as biometric identifiers and biometric information under the Illinois Biometric Information Privacy Act. Instead, the judge agreed with Facebook that the case could not be tried in Illinois.

“They have to show personal jurisdiction in order to sue someone in a particular jurisdiction,” said Linn Freedman, partner at Robinson & Cole.

“In this particular case, the judge found that Facebook was not targeting specifically Illinois residents. He also found that they did not have minimum contact with Illinois.”

Facebook is a California-based company that operates a mobile application and website used by people across the country and around the world. The people of Illinois, while certainly included in that subset, are not sought out specifically by Facebook to join its site.

However, the company is currently facing a proposed class action in California relating to some of the same questions.

“The legal argument of personal jurisdiction will not be applicable in California since that’s where Facebook is located,” Freedman said.

How the California class action will play out remains to be seen. California does not yet have a clear policy on biometric privacy.

A bill pending in the state’s legislature would extend the scope of the data security law to include biometric data as well as geophysical location, but it has not yet become law.

The question of privacy in regards to biometric information is one that has garnered increasing attention in recent months. On Feb. 4, the Biomterics Institute, an independent research and analysis organization, released revised guidelines comprising 16 privacy principles for companies that gather and use biometrics data.

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