Instagram ‘Illegal Biometric Harvesting’ Leads to California Legal Action against Facebook

In California an accusation that the illegal harvesting the biometric data of over 100 million Instagram users has taken place has resulted in legal proceedings being initiated against Facebook, owner of the image sharing social media platform.

The legal action was filed in Redwood City late on Tuesday evening, titled Whalen v. Facebook, 20-civ-03346, Superior Court of California. It claims that Instagram has knowingly gathered, saved and used the data of the users without their knowledge or consent to make a profit. This comes in the aftermath of Facebook offering, in July, to settle an Illinois lawsuit where it was accused of illegally harvesting biometric data –  through a photo-tagging tool provided to Facebook users – for $650m.

Responding to the filing pf the new legal action Stephanie Otway, a Facebook company representative, released a statement that said: “This suit is baseless. Instagram doesn’t use face recognition technology.”

Reports indicate that the legal action which was filed claims that Facebook is in breach of an Illinois privacy law (the Biometric Information Privacy Act) that prohibits the collection of biometric data without a user’s consent. It the company is found guilty of the breach it could be directed to pay $1,000 per violation.  However, this fine can grow up to $5,000 per violation if it can be proven that Facebook acted recklessly or intentionally.

The service that lead to the Illinois legal action and settlement offer last month is called ‘Tag Suggestions’. This is a process that deploys face-matching software to suggest the names of people in photos uploaded to the network.  The action claimed that Facebook has been gathering collecting facial data without users’ authorization and without providing a timeline for how long that data will be held by the company. Facebook denied the claims made in the legal action despite offering to settle legal action for the aforementioned figure.

Instagram’s online data policy on face recognition states: “If we introduce face-recognition technology to your Instagram experience, we will let you know first, and you will have control over whether we use this technology for you.”

The moves to better police the harvesting and gathering of biometric data have been increased in many jurisdictions recently. The European Commission warned earlier this year that facial recognition tools can be faulty, can violate privacy and can aid criminal activity. Following this the European Union Competition Commissioner Margrethe Vestager directed EU member states to regulate the use of facial recognition technology themselves.

The General Data Protection Regulation already allows that the data protection agencies in each EU member states are responsible for policing data breaches. There have been some actions taken in relation to gathering facial biometric data, one at a school in Sweden, and there is sure to be calls and legal actions from lobby groups following this lawsuit in the US.


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