In a ruling with implications for data privacy litigation nationwide, the Ninth Circuit recently stayed its decision allowing a biometric privacy class-action suit to proceed against Facebook, thus permitting the social media company to appeal the decision to the Supreme Court. The outcome of Facebook’s appeal could affect the law of standing with respect to data privacy litigation.
The lawsuit arose from Facebook’s “Tag Suggestions” feature, which used facial recognition technology to match known user faces to unknown faces in uploaded pictures. If the technology recognized a match, then Facebook would notify the person who uploaded the picture and suggest that the uploader “tag” the person recognized. If the uploader followed the suggestion, Facebook would link the recognized person to the picture. Facebook enabled this feature by default, although users could opt out.