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Privacy and Interstate Commerce

With the ever-increasing dominance of cameras in our society, we might never think to ask “can someone find me from a picture?”  How futuristic would it be, to snap a picture of someone’s face and see their social media? To use a face like a business card? While technology may not be at that point, the law seems to be ahead of the curve. Currently, there are two lawsuits regarding the “tagging” of a person’s image online through social media due to one state’s law protecting biometric privacy, and how that affects us in interstate commerce. So, what is this law? What are the details of the lawsuits? How might this affect interstate commerce in general?

What are the lawsuits about?

The law itself comes out of Illinois, prompted by biometric additions to payment systems. Biometric data itself is quite common. It could include an individuals’ face, voice, fingerprint, retina scan, or blood type.  Anything that comes from the individual’s body that is recorded could qualify. This would then be used to determine the person’s identity or recorded for their own use, like in a health-monitoring app. The law requires any entity that is collecting this type of information, both tell the individuals, and explicitly obtain their consent.

With that, it prompted the complaints by various citizens of Illinois to sue Facebook, Google, and Shutterfly over the “tagging” of their photographs.  In the Facebook case, the crux of the complaint was that as others tagged the plaintiffs in photographs, Facebook’s software would learn their face, and therefore effectively work as a facial scan, memorizing biometric information. Facebook could be liable for $1,000 to $5,000 per violation. Facebook attempted a dismissal, both under its choice of law provision that was outlined in its terms and conditions, and to disqualify photographs as biometric identifiers. However, it failed at this, with a particularly unfortunate part as to the choice of law provision being rendered moot since enforcing the Indiana law would be less harmful. This has prompted a second attempt at dismissal on the grounds that the damages suffered by the victims were not concrete enough.  Comparatively, Google, with a similar lawsuit, is arguing that the statutes interfere with interstate commerce, and should not be in the jurisdiction of the state.  However, Shutterfly, which was involved in a similar case, opted to settle the lawsuit.

How might this affect interstate commerce?

Ultimately, Facebook, Google, and Shutterfly are all e-commerce entities, providing services to individuals in various states.  So, without similar privacy laws in their jurisdictions, such as Facebook’s case, it could impose new burdens as various states may integrate their own privacy protection laws.  From a practical perspective, it may impose additional difficulties when operating their business, forcing either a lengthy litigation process, or massive changes to their business operations.  Instead, it may be something that requires the federal government’s intervention in order to level the playing field and permit proper protection.

If you have questions about your privacy rights, or concerns related to interstate commerce, you may contact us to set up an initial consultation. At our law firm, we assist clients with legal issues related to business, technology, and e-commerce transactions.