In re Facebook Biometric Info. Privacy Litig.

• Decision Date: 05 May 2016
• Docket Number: Case No. 15-cv-03747-JD
• Citation: 185 F.Supp.3d 1155
• Court: U.S. District Court — Northern District of California
• Parties: In re Facebook Biometric Information Privacy Litigation.

185 F.Supp.3d 1155

In re Facebook Biometric Information Privacy Litigation.

Case No. 15-cv-03747-JD

United States District Court, N.D. California.

Signed May 5, 2016

ORDER RE MOTION TO DISMISS AND SUMMARY JUDGMENT

JAMES DONATO, United States District Judge

In this putative class action under the Illinois Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. ("BIPA"), the named plaintiffs allege that defendant Facebook, Inc. ("Facebook") unlawfully collected and stored biometric data derived from their faces. Although the case is brought by Illinois residents under Illinois law, it is before this Court because the parties agreed to transfer it here from the United States District Court for the Northern District of Illinois.

In the motions before the Court, Facebook argues that plaintiffs have failed to state a claim under BIPA and that a California choice-of-law provision in its user agreement precludes suing on an Illinois statute. Plaintiffs say the BIPA allegations do state a claim and that they never agreed to a choice of California law. Even if they had, plaintiffs contend Illinois law applies under traditional choice-of-law rules. After briefing and an evidentiary hearing on disputed fact issues underlying choice of law, the Court finds that Illinois law applies and that plaintiffs have stated a claim under BIPA.

BACKGROUND

As alleged in the complaint, Facebook "operates the largest social network in the world, with over one billion active users." Dkt. No. 40 ¶ 1. The three named plaintiffs, Nimesh Patel, Adam Pezen and Carlo Licata, are Facebook users who "use its platform to, among other things, upload and share photographs with friends and relatives." Id . ¶¶ 2, 7–9.

This case arises out of Facebook's "Tag Suggestions" program, which was launched in 2010. Id . ¶ 3. A "tag" on Facebook is when a user identifies by name other Facebook users and non-users who appear in the photographs that have been uploaded to Facebook. Id . ¶ 2. "Tag Suggestions" is intended to encourage more tagging on Facebook. Id . ¶ 3. The program functions by scanning uploaded photographs "and then identifying faces appearing in those photographs." Id . If the program "recognizes and identifies one of the faces appearing in [a] photograph, Facebook will suggest that individual's name or automatically tag them." Id . In effect, the program puts names on the faces in photos and prompts users to tag those individuals.

To make the tagging suggestions, Facebook utilizes "state-of-the-art facial recognition technology" to extract biometric identifiers from the profusion of photographs users upload. Id . ¶¶ 4, 22. Facebook creates and stores digital representations (known as "templates") of people's faces based on the geometric relationship of facial features unique to each individual, "like the distance between [a person's] eyes, nose and ears." Id . ¶ 23.

Plaintiffs allege that Facebook amassed users' biometric data secretly and without consent. Specifically, they allege that the Tag Suggestions program violated BIPA because Facebook did not: "[1] properly inform plaintiffs or the class in writing that their biometric identifiers (face geometry) were being generated, collected or stored; [2] properly inform plaintiffs or the class in writing of the specific purpose and length of time for which their biometric identifiers were being collected, stored, and used; [3] provide a publicly available retention schedule and guidelines for permanently destroying the biometric identifiers of plaintiffs and the class (who do not opt-out of ‘Tag Suggestions'); and [4] receive a written release from plaintiffs or the class to collect, capture, or otherwise obtain their biometric identifiers." Id . ¶ 5. Plaintiffs seek declaratory and injunctive relief, and statutory damages. Id . ¶ 6.

This case was previously pending as three separate cases (one for each of the three named plaintiffs) in the federal district court for the Northern District of Illinois. Dkt. No. 1. The parties stipulated to transfer them to this Court. Dkt. No. 29. Once here, the Court consolidated the three cases into a single action. Dkt. No. 44. Plaintiffs' consolidated class action complaint, Dkt. No. 40, is the operative complaint.

Facebook filed a motion to dismiss the consolidated complaint under Rule 12(b)(6). Dkt. No. 69. The motion made two arguments: (1) "plaintiffs cannot pursue a claim under the Illinois BIPA because they agreed that California law governs their disputes with Facebook"; and (2) "the Illinois BIPA does not apply to Tag Suggestions." Id . at 6, 10.

Plaintiffs denied that they agreed to Facebook's user agreement, including the choice-of-law provision, and raised fact disputes that could not be resolved within the confines of a Rule 12(b)(6) motion. The Court converted this portion of defendant's motion to dismiss into a summary judgment proceeding under Rule 56, and set an evidentiary hearing on the contract formation dispute for the choice-of-law provision. Dkt. No. 85 at 20:14–23, 24:3–11. Defendant's second argument for dismissal—that plaintiffs had failed to state a claim under BIPA—was taken under submission pending resolution of the choice-of-law question.

After additional briefing from both sides, Dkt. Nos. 96, 97–3, the Court held an evidentiary and summary judgment hearing. As the proponent of the choice-of-law provision, Facebook called two live witnesses: Joachim De Lombaert, a Facebook engineering manager, and Mark Pike, a Facebook privacy program manager. Dkt. Nos. 96, 109. Plaintiffs cross-examined these witnesses and presented portions of each of the three plaintiffs' videotaped depositions, but did not call any live witnesses of their own. After the evidentiary hearing, the Court took arguments from counsel on the summary judgment issues: whether a contract had been formed on choice of law, and if so, whether it should be enforced to bar plaintiffs from asserting claims under Illinois law. Dkt. No. 109.

This order resolves the motion to dismiss and the motion for summary judgment. All previously unaddressed evidentiary objections are overruled and plaintiffs' request to defer summary judgment under Rule 56(d) is denied.

DISCUSSION

I. SUMMARY JUDGMENT

A. CHOICE-OF-LAW FACTFINDING

Before getting to the findings of fact from the evidentiary hearing, the Court addresses the question of whether it should be making any findings at all. Plaintiffs object that, "[t]o the extent the evidentiary hearing on the issue of assent would involve weighing evidence, assessing credibility of live testimony, and resolving disputed issues of fact, that would invade the province of the jury." Dkt. No. 97–3 at 1–2. This objection is cursory — plaintiffs devote less than one page to it in their brief—and unpersuasive.

It is certainly true, and not disputed by Facebook, that plaintiffs have a right to a jury trial in this case under the Seventh Amendment to the United States Constitution. But the attachment of a jury right to the case as a whole does not mean that each and every issue in the case "is itself necessarily a jury issue." Markman v. Westview Instruments, Inc. , 517 U.S. 370, 378, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). In appropriate circumstances, the Court may decide fact disputes raised on the way to trial. For example, our Circuit has established that "a judge rather than a jury decides disputed factual questions relevant to jurisdiction and venue." Albino v. Baca , 747 F.3d 1162, 1170–71 (9th Cir.2014). And the Supreme Court held in Markman that, in a patent infringement case otherwise subject to trial by jury, the issue of "the construction of a patent, including terms of art within its claim, is exclusively within the province of the court." 517 U.S. at 372, 116 S.Ct. 1384. That is so even though claim construction has "evidentiary underpinnings" and may involve "credibility judgments" about witnesses. Id . at 389–90, 116 S.Ct. 1384 ; see also Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. , –––U.S. ––––, 135 S.Ct. 831, 836–37, ––– L.Ed.2d –––– (2015) (applying clearly erroneous standard in FRCP 52(a) to "district court's resolution of subsidiary factual matters made in the course of" claim construction).

When a question arises of whether the judge or a jury should decide a fact dispute, Markman directs the courts to turn to history in the first instance for an answer. The right of trial by jury preserved in the Seventh Amendment " 'is the right which existed under the English common law when the Amendment was adopted.' " Markman , 517 U.S. at 376, 116 S.Ct. 1384 (quoting Baltimore & Carolina Line, Inc. v. Redman , 295 U.S. 654, 657, 55 S.Ct. 890, 79 L.Ed. 1636 (1935) ). This "historical test" is easy to answer when there is "clear historical evidence that the very subsidiary question was so regarded under the English practice of leaving the issue for a jury." Id . at 376–77, 116 S.Ct. 1384. But if the past does not speak clearly, "we are forced to make a judgment about the scope of the Seventh Amendment guarantee without the benefit of any foolproof test." Id .

The historical inquiry here is unhelpful. Plaintiffs have not proffered any historical evidence in support of their objection, either because there isn't any or they didn't take the time to look — the Court cannot tell. They also do not cite to any guidance in the form of controlling case law. Instead, they have pointed only to two out-of-district cases, Dkt. No. 97–3 at 2, one of which offers the observation that the "Circuits appear to be in dispute as to whether the court should resolve factual issues relevant to the choice of law." Mattel, Inc. v. MGA Entm't, Inc. , 782 F.Supp.2d 911, 977 n. 24 (C.D.Cal.2011).

The law is clearer than that characterization suggests. The Fifth and Seventh Circuits have expressly approved judicial resolution of fact disputes raised in a choice-of-law determination. See Vaz Borralho v. Keydril Co. , 696 F.2d 379, 386 (5th Cir.1983) ; Nautilus Ins. Co. v....