Judge: George Washington Did Not Care About Biometric Data Storage

Image courtesy of Adam Fagen

We live in a world that’s constantly throwing new technology, new business, and new quandaries at us. Facebook, Google, Amazon, Uber, Twitter, and the smartphone that we use to access them all on either didn’t exist, or existed very differently, as recently as a decade ago. The framework for our legal system, however, was built in the 18th and early 19th centuries. And that means sometimes trying to apply to the latter to the former can result in entertaining, if accurate, dissonance.

And in fact, a case against Facebook is exactly how we get to a federal judge in San Francisco this week explaining that George Washington basically did not give two whits about the details of biometric data storage, Courthouse News reports.

The discussion came up during a hearing about a privacy-related class-action suit Facebook is trying to have dismissed. The core issue behind the case has to do with facial recognition. You know how when you upload a photo, Facebook automatically suggests people you should tag in it? The case is about that thing.

(If you don’t like that thing, you can opt out of or into having Facebook suggest your face in tags under the “Timeline and Tagging” section of the Facebook settings page.)

The plaintiffs’ claim is that in order to make that feature work, Facebook has to measure, collect, and store information about your face: its dimensions, its features, how far apart your nostrils are, and so on: data. Lots of data.

Those are biometric markers, the plaintiffs argue, and collecting them without making specific disclosures and obtaining adequate releases in in violation of BIPA, the Illinois Biometric Information Privacy Act of 2008.

Facebook wants the case dismissed, and filed a motion (PDF) to that effect in June. Facebook’s argument for dismissing the case relies on large part on another case recently heard by the Supreme Court, Spokeo v. Robins.

We explained the Spokeo case back in April. The TL;DR of it is, a man (Robins) who found that information information-aggregator Spokeo had, sold, and shared about him was incorrect sued over it. Spokeo countered that because he couldn’t prove specifically if or how he was harmed, he didn’t have the right to sue them. And so it went, through ruling and appeal all the way up to SCOTUS.

In May, the Justices in Washington ruled 6-2 that basically the lower court had not proven its case to the satisfaction of the law, and would have to try again.

The majority opinion held that the harm caused by incorrect data may be concrete (real) whether or not it is tangible — that you can indeed suffer real harm even if you can’t point to a ledger sheet and say, “that’s the $3308.27 this error cost me, right there.” But the lower court didn’t analyze the law enough to determine whether or not Robins’ particular claims met the concreteness standard, so SCOTUS kicked it back down without determining whether or not he actually suffered harm.

That is the background against which we find George Washington unexpectedly popping up in the hearing about the dismissal motion, Courthouse News explains. U.S. District Judge James Donato, who rejected an earlier motion for dismissal in May, heard arguments for and against this new motion this week.

And of course, as so often happens, part of it came back around to Constitutional law. Facebook argued that the privacy claims — that having your data aggregated, used, and stored in this way is harmful — have basically always been rubbish under the law, coming back around to Article III of the U.S. Constitution, and how it undergirds the case (or not).

And with the Constitution, we circle back to the group of men who wrote, signed, and initially enacted it.

“A couple of justices are focused on what happened 200 years ago,” Donato said. “What opinion does George Washington have on this? There are historical realties that simply don’t overlap.”

He also said that the Spokeo argument “impresses me for its utter lack of novelty,” saying that the question is entirely one of standing under Article III, and not related to the actual question of harm.

If he does rule in favor of Facebook on the motion to dismiss, Donato added, he will likely remand two of the class actions, which originated in state court in Illinois and California, back to those state jurisdictions — meaning the cases wouldn’t go away, they’d just be heard elsewhere and argued under different law.

Court Scoffs at Facebook Insight of Founders [Courthouse News Service]

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