Nimesh Patel, aggrieved user of Facebook and Illinois resident, isn’t naive: He well understands that the social networking company collects information about him. But Facebook went too far for his liking when it collected certain intimate details about his physiognomy, such as how many millimeters of skin lie between his eyebrows, how far the corners of his mouth extend across his cheeks, and dozens of other aspects of his facial geometry that enable the company’s face recognition software to identify him.
Patel is a named plaintiff in a class-action lawsuit against Facebook alleging that the company’s use of face recognition technology violates an Illinois law passed in 2008. The Biometric Information Privacy Act (BIPA) sets limits on how companies can store and use people’s biometric identifiers, which the law defines as fingerprints, voiceprints, retina or iris scans, and scans of hand or face geometry. The case is scheduled for trial this October, and similar Illinois-based lawsuits are proceeding against Google and Snapchat. In the upcoming year, the courts will host a debate over who can keep our faces on file.
Civil liberties groups say that debate is long overdue. The Illinois law is a weird outlier in the United States, where face recognition is increasingly being integrated into surveillance systems and law enforcement databases. The technology has rapidly improved in recent years, says Jennifer Lynch, an attorney with the Electronic Frontier Foundation, and regulations haven’t kept pace. “We could soon have security cameras in stores that identify people as they shop,” she says.
The case against Facebook hinges on a handy photo-tagging feature introduced in 2010: When a user uploads a photo, Facebook’s system automatically picks out any faces in the shot, tries to match those faces to people it’s seen in photos before, and offers up the names of any friends it has identified. According to the lawsuit, this “tag suggestion” system proves that Facebook collects and stores “face templates” for its American users. (The company turned off this feature in Europe in 2012 over privacy concerns.)
The Illinois law predates Facebook’s introduction of the tag-suggestion feature and doesn’t mention social networks. Instead, BIPA cites the potential use of biometric IDs in financial transactions, and notes that these identifiers differ significantly from PIN codes and passwords—if customers’ biometric IDs are stolen by hackers, they can’t be issued new fingerprints or faces. But the class-action lawyers who have recently seized on the law aren’t going after banks; they’re targeting tech companies. Yet another lawsuit, settled in April 2016 for an undisclosed sum, took aim at the photo storage site Shutterfly.
Under BIPA, private companies must develop written policies stating how long they will retain people’s biometric information and when they will permanently destroy that data. “In a way, this is a modest law,” says Claire Gartland, an attorney who works on consumer privacy issues at EPIC, the Electronic Privacy Information Center. “It just requires a disclaimer to the consumer.”
By maintaining a database of Illinois users’ face templates without a written policy in place, the suit says, Facebook has violated the law. A Facebook spokesperson declined to answer questions about the lawsuit, but notes that users can easily turn off the tag-suggestion feature for their accounts.
The legal wrangling has already begun. In late 2015 the company filed a motion to dismiss [PDF] based on its interpretation of BIPA’s list of biometric identifiers, which includes face scans and face geometries yet explicitly excludes photographs and physical descriptions. Facebook argued that the law refers only to physical face scanners that create biometric records based on flesh-and-blood faces. But the court called Facebook’s argument “unpersuasive,” saying that the law was intended to address all emerging biometric technologies, and allowed the suit to move forward [PDF]. If Facebook loses the case, the company could be forced to pay damages to millions of Illinois users and change its policies in that state—or, more practically, throughout the United States.
In the courtroom, it’s quite possible that the technical aspects of Facebook’s face recognition technology will come into play. The courts may need to know whether the company uses the conventional approach to face-matching software, says biometrics expert Anil Jain, a professor of computer science and engineering at Michigan State University. Such systems build and store face templates based on thousands of measurements: “They extract landmark points by sampling across the contours of the face, the eyebrows, the nose, the points along the lips, the two ends of the mouth, and so forth,” he says.
But Jain notes that Facebook researchers pioneered a new approach to face recognition that relies on machine learning, introducing their DeepFace system in a 2014 paper. In the report, the researchers describe training their system using a data set of 4.4 million labeled faces drawn from Facebook photographs. The system’s deep neural network examined the faces based on millions of parameters, and derived its face-matching rules based on whatever mysterious lessons it learned. “It’s more like a black box,” Jain says.
Facebook won’t say whether it now uses DeepFace, or something like it, for its standard tag-suggestion feature. If the company does employ this advanced method, however, its current technology might not violate the letter of the law. “The question is what they store in the database,” explains Jain. As the DeepFace program analyzes raw photographs, the system might simply hold on to the analytic rules it has learned, and might not bother to store face templates that count as biometric identifiers. Therein lies the irony: If Facebook doesn’t save faces in its database, it may save face in court.
This article appears in the January 2017 print issue as “Face Recognition Tech Goes on Trial.”