Facebook's efforts to settle the long-running class action alleging violations of the Illinois Biometric Information Privacy Act (BIPA) are moving forward again after being delayed earlier this year.

The case arose from the use of facial recognition technology to tag individuals in photographs uploaded by Facebook users. This allegedly violated BIPA because the social media company purportedly scanned facial geometry without obtaining written releases from the tagged individuals, or establishing a BIPA-compliant retention schedule. The 9th Circuit affirmed class certification and the continued proceedings, and the U.S. Supreme Court denied certiorari.

After the appellate proceedings concluded, and following remand to the district court in January, Facebook proposed a $550 million settlement, which the district court rejected as inadequate. Facebook then increased the settlement amount to $650 million, which the court accepted, and the parties are now moving forward with the publication and distribution of notice and processing class member claims.

In the order approving the amended settlement stipulation, the court noted that Facebook denied all material allegations of wrongdoing and liability. The court specifically noted that there "remained a dispute of fact about whether Facebook's facial recognition technology collects a scan of face geometry" under BIPA and "whether Facebook had a good-faith reason for acting as it did with respect to Illinois users."

Over 15 million notices were emailed last week and on September 23, 2020, a one-eighth page ad in the classified section of the Chicago Tribune, and a one-quarter page ad in the main news section of the Chicago Sun-Times were published. A Google Display Network internet banner ad campaign is running from September 23 to October 23, 2020. At this time, over one million claims have been received through the settlement website. Facebook is also required to turn off the facial recognition setting for most class members and delete existing face templates unless the users turn the setting back on themselves.

A minor hiccup in the process arose when a law firm ran ads on Facebook and established a website titled "Sign up for a Facebook Illegal Facial Recognition Claim," apparently soliciting class members to opt out of the settlement. Although the firm withdrew the ads, a hearing was held September 22, 2020, on a motion for a temporary restraining order filed by the plaintiffs and the class.

The firm argued that a TRO would amount to a "gag order" and an "unconstitutional prior restraint on free speech." However, the latest status report states "that [the firm] will no longer be proceeding with further advertising or in representing any class members that responded to the initial advertising."

Although a recent case suggests that a "bare procedural" violation of BIPA was insufficient to state a claim for relief, there have been a number of new cases filed where, for example, employers use fingerprint technology for clocking employees in and out of work, but without the proper notices, consents, and policies in place.