Facebook Face-Scan Trial Okayed by Appeals Court

be exposed to billions of dollars in damages. It could not undo a ruling that allows millions of its users to band together in a lawsuit accusing the social network of gathering and storing biometric data without consent. Joining me is Eric Goldman, a professor at Santa Clara University School of Law. Eric, this is a privacy suit by Illinois

Facebook users. What are they claiming here? They're claiming that Facebook created staff shots of their faith geometry and violation of the statute which requires Facebook to obtain their consent before making those geometry calculations. This is a class action lawsuit. What was the reasoning of the Ninth Circuit for allowing it to go forward as a class well? The ruling didn't deal with all of the different issues that need

to be adjudicated in this dispute. Facebook is trying some procedural moves to either eliminate the food or to make it less dangerous. So, for example, it tried to claim that the members of the class didn't have common interest, especially about the fact that they were based in Illinois

but bringing in laws in California. But the court said that the lower court could properly determine whether or not the Illinois residents had a right to bring a laws in California, and therefore they could all be adjudicated together. Facebook is exposed to these huge penalties in this suit because of the Illinois Privacy Act, and I suppose that's why Illinois residents brought it. Yeah, right, The laws shouldn't apply to any other residents, so it's a Illinois specific law.

And of course that some interesting questions about how Facebook could deal with one specific state statutes when it's appealing to people across the globe. I will add that since Illinois enacted law, a few other states have enacted similar laws, although they're not identical, so there could be other claims

in the future by residents of other states. Explain what this law specifically requires, Well, the law is basically trying to prevent anyone, including Facebook, but not exclusively Facebook, from using biometric information. So there's a bunch of different ways in which we are uniquely identifiable as people based on our body. That includes things like our face. But there's another traits that we have that can be through machine

learning and computer algorithms, uniquely identifying individual people. So the law tries to prevent all of that, and say, anyone who wants to gather and use biometric information needs to obtain consent from the person who's going to be acorded in the database. And then there's some other procedural requirements like that information has to be tossed in a certain period of time. Other than procedural defenses, what is Facebook's defense to the merits of the case. There's a lot

of great defenses. I think that Facebook actually did the behavior that the statute tried to regulate, but that's not the end of the inquiry. So, as I mentioned, one of the things that I'm struggling with is how Facebook could uniquely determine that someone's an Illinois resident governed by this law versus a California resident not governed by this law. The only way they might know that is by actually figuring that who that person is, and the biometrics would

have been necessary to do that. So there's a kind of feedback loop here. How does Facebook noll is dealing with Illinois residents if it doesn't actually uniquely identify them using biometrics? But if it does uniquely identify them using biometrics, then they've broken the law. So there's a little bit of a tautology here for Facebook. That's one of the substance questions I have about this case. Did Google win dismissal of a similar suit in December? So how did

they win dismissal on the other grounds? Sorry, I have to remember that. Now. Facebook said it plans to seek further review of the ruling. Is it talking about a request for an on bank ruling at the Ninth Circuit or the Supreme Court? Yeah. The standard protocoll would be for to ask the Ninth Circuit to hear the case again. It would first ask the panel to reconsider what they did, and they're probably not going to do that. It would ascend a larger group of nine Circuit judges to consider

the case again. That's called an on bo kiering, and those are possible. But they're they're not granted very frequently, and then if it's denied on both of those and theological step would be fair to appeal the Supreme Court, where the odds of it getting the Supreme Court to take it are very low. This has already been delayed for more than a year with Facebook's appeals. Trial was originally set for July of last year. Tell us about the judge if you know in that case who seems

unsympathetic to Facebook's arguments for limiting its exposure. Well, in the end, I think that all judges trying to apply the law, So you know, in the end, like every other judge, this judge is trying to get it right. My own impression of this particular judge has said he's been quite skeptical of the Internet company claims about why they use technology the way that they do. I've seen some other rulings from him that against suggest that skepticism. In the end, I expect him to apply the law

so that skepticism shouldn't matter to the end. But definitely, if they're is a great area, I would expect him to be less accommodating of the Internet Company's arguments and maybe other judges. Would you know people talk about Facebook being exposed to billions of dollars in damages, it's already agreed to. I think it was a five billion dollar fine with the FTC. Do billions really matter to Facebook? Well, at some point the money runs out, So um, Facebook

has a lot of money. They're they're one of the wealthiest companies in the world. Um. But but the fact that a single state could create damages obligation that could dwarf any other government's imposition of penalty on Facebook. It's something that we just want to note. We can't we can't be so cavalier about Facebook's wealth when you realize we're just talking about Illinois users of Facebook. We're not

talking about the billions of other users of Facebook. Interesting. So, now, of all the different investigations and regulators that are looking at Facebook, which would you say, about a minute, here is the one that has to worry about most. I think I have to worry about all of them. I know that's a lot flip, but basically, regulators are gunning for Facebook across the board, across the globe, and so any one of them they can find the right tool,

is determined to destroy Facebook. This lawsuit, you expected to go to trial. Actually, at this point, I'm not sure what moved. Facebook still has to prevent that. So if they can't find another mood to prevent trial, then that's that is the logical next step. All right, Thanks so much, Eric, it's a pleasure having you on. That's Eric Goldman. He's a professor at Santa Clara University School of Law. Thanks

for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg