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Facebook Scores Arbitration of Instagram Users’ Privacy Case

April 5, 2022, 1:50 PM

Instagram users who say their biometric information was collected by Facebook Inc. in violation of Illinois law must individually arbitrate their claims, according to a federal court in California.

The plaintiffs claimed the company collected, stored, and profited from the biometric data of more than 100 million Instagram users without their knowledge or consent, as required under the Illinois Biometric Information Privacy Act. Specifically the plaintiffs alleged Facebook used the information to “power, train, and develop its facial recognition software.” They sought to have the case certified as a class action on behalf of Instagram users living in Illinois.

The company previously paid $650 million to settle similar claims that the company’s photo-tagging tool for its own platform violated biometric privacy laws.

Facebook recently argued to the U.S. District Court for the Northern District of California that each plaintiff in this case agreed to arbitration provisions found in Instagram’s terms of use, and that they received several notifications about updates to the app’s terms of service along with the opportunity to opt out.

Court records filed Monday indicate that Judge Jon S. Tigar granted Facebook’s motion to compel arbitration and closed the case. The order detailing Tigar’s reasoning is confidential, and a public version hasn’t yet been released.

Lynch Carpenter LLP and Milberg Coleman Bryson Phillips Grossman PLLC represent the plaintiffs. Cooley LLP and Mayer Brown LLP represent Facebook.

The case is Whalen v. Facebook Inc., N.D. Cal., No. 4:20-cv-06361, 4/4/22.

To contact the reporter on this story: Brian Flood in Washington at bflood@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com