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Does tagging someone on Facebook violate their right to privacy?

By Brady McAninch on November 10, 2016

Three Illinois men have filed a lawsuit against Facebook alleging that the social network’s use of facial recognition software violates their privacy interests.  The suit, which was originally filed in Cook County, was transferred to the Northern District of California last summer.  The lawsuit is brought under the Illinois Biometric Information Privacy Act.  740 ILCS 14/1.  The men claim that this statute gives them a property interest in their biometric data that Facebook is violating.  Facebook, conversely, has argued that this lawsuit, and other similar suits, should be thrown out because there is no real harm or damage and, thus, no grounds on which to bring a claim.

What privacy rights do you have?

This leads to the obvious question, what is the harm in Facebook using facial recognition software?  In fact, the majority of Facebook users have no issue with this practice.  Millions of Americans tag their friends and family in pictures on a daily basis without a second thought to any potential consequences.  In turn, Facebook and other companies use this user uploaded data to improve their business.  Facebook uses face recognition software to identify user activities and interests.  Facebook can then sell this data to third-parties seeking to advertise to target their advertising.   For example, let’s say you post a picture of you and your friends rock climbing.  When posting your photo, you tag your friends.  Facebook can then use its software to determine that you, and your friends, all enjoy rock climbing.  Facebook can then sell advertising space on you and your friends Facebook pages to companies like REI.  This type of targeted marketing is extremely valuable to internet companies.

Facebook’s facial recognition software has an accuracy rate in excess of ninety-five percent

So, Facebook is making money off of its facial recognition software, but does that harm?  Is the person whose photo is being tagged without his or her permission entitled to some of those profits from advertising?  Does that person have some privacy interest that is an enforceable right?  What other damages could there be?  Alessandro Acquisti, professor at Carnegie Mellon University, performed a study that indicated there is an increased risk of identity theft if your pictures are being posted online.  Is the increased threat of identity theft enough to establish a recognizable claim?  Generally, courts have said no.  There has to be more, more than just an increased threat.

Cases like this are just the beginning of the upcoming digital privacy wars.  As internet companies collect and use more and more data, the right to privacy may become a much more difficult right to enforce.  We will continue to monitor these cases and provide updates throughout the litigation.

If you or someone you care about has a legal question, contact one of the experienced attorneys at Hipskind & McAninch, LLC, for a FREE CASE CONSULTATION at: 618.641.9189 | 314.312.2930 | info@hm-attorneys.com

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