Nimesh Patel v. Facebook, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIMESH PATEL, Individually and No. 18-15982
on Behalf of All Others Similarly
Situated; ADAM PEZEN; CARLO D.C. No.
LICATA, 3:15-cv-03747-JD
Plaintiffs-Appellees,
v. OPINION
FACEBOOK, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Argued and Submitted June 12, 2019
San Francisco, California
Filed August 8, 2019
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit
Judges, and Benita Y. Pearson,* District Judge.
Opinion by Judge Ikuta
*
The Honorable Benita Y. Pearson, United States District Judge for
the Northern District of Ohio, sitting by designation.
2 PATEL V. FACEBOOK
SUMMARY**
Standing / Class Certification / Illinois Law
The panel affirmed the district court’s order certifying a
class under Fed. R. Civ. P. 23 of users of Facebook, Inc., who
alleged that Facebook’s facial-recognition technology
violated Illinois’s Biometric Information Privacy Act
(“BIPA”).
The panel held that plaintiffs alleged a concrete and
particularized harm, sufficient to confer Article III standing,
because BIPA protected the plaintiffs’ concrete privacy
interest, and violations of the procedures in BIPA actually
harmed or posed a material risk of harm to those privacy
interests. Specifically, the panel concluded that the
development of a face template using facial-recognition
technology without consent (as alleged in this case) invades
an individual’s private affairs and concrete interests.
The panel held that the district court did not abuse
its discretion in certifying the class. Specifically, the panel
rejected Facebook’s argument that Illinois’s extraterritoriality
doctrine precluded the district court from finding
predominance. The panel further held that the district court
did not abuse its discretion in determining that a class action
was superior to individual actions in this case.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PATEL V. FACEBOOK 3
COUNSEL
Lauren R. Goldman (argued), Andrew J. Pincus, and Michael
Rayfield, Mayer Brown LLP, New York, New York, for
Defendant-Appellant.
John Aaron Lawson (argued) and Rafey S. Balabanian,
Edelson PC, San Francisco, California; Susan K. Alexander
and Shawn A. Williams, Robbins Geller Rudman & Dowd
LLP, San Francisco, California; Michael P. Canty and Corban
S. Rhodes, Labaton Sucharow LLP, New York, New York;
for Plaintiffs-Appellees.
Susan Fahringer and Nicola Menaldo, Perkins Coie LLP,
Seattle, Washington; Neal Kumar Katyal, Hogan Lovells US
LLP, Washington, D.C.; Lauren Ruben, Perkins Coie LLP,
Denver, Colorado; Thomas P. Schmidt, Hogan Lovells US
LLP, New York, New York; Sara Solow, Hogan Lovells US
LLP, Philadelphia, Pennsylvania; for Amicus Curiae Internet
Association.
Nathan Freed Wessler, American Civil Liberties Union, New
York, New York; Rebecca K. Glenberg, Roger Baldwin
Foundation of ACLU, Chicago, Illinois; Jacob A. Snow,
American Civil Liberties Union Foundation of Northern
California, San Francisco, California; Jennifer Lynch and
Adam Schwartz, Electronic Frontier Foundation, San
Francisco, California; Joseph Jerome, Center for Democracy
& Technology, Washington, D.C.; Michael C. Landis, Illinois
PIRG Education Fund Inc., Chicago, Illinois; for Amici
Curiae American Civil Liberties Union, American Civil
Liberties Union of Illinois, American Civil Liberties Union
Foundation of Northern California, American Civil Liberties
Union Foundation of Southern California, Center for
4 PATEL V. FACEBOOK
Democracy & Technology, Electronic Frontier Foundation,
and Illinois PIRG Education Fund Inc.
Marc Rotenberg, Alan Butler, and John Davisson, Electronic
Privacy Information Center, Washington, D.C., for Amicus
Curiae Electronic Privacy Information Center (EPIC).
Kelly P. Dunbar, Reginald J. Brown, Patrick J. Carome,
Jonathan G. Cedarbaum, and Samuel M. Strongin, Wilmer
Cutler Pickering Hale and Dorr LLP, Washington, D.C.;
Steven P. Lehotsky and Jonathan D. Urick, U.S. Chamber
Litigation Center, Washington, D.C.; for Amicus Curiae
Chamber of Commerce of the United States of America.
OPINION
IKUTA, Circuit Judge:
Plaintiffs’ complaint alleges that Facebook subjected
them to facial-recognition technology without complying
with an Illinois statute intended to safeguard their privacy.
Because a violation of the Illinois statute injures an
individual’s concrete right to privacy, we reject Facebook’s
claim that the plaintiffs have failed to allege a concrete
injury-in-fact for purposes of Article III standing.
Additionally, we conclude that the district court did not abuse
its discretion in certifying the class.
I
Facebook operates one of the largest social media
platforms in the world, with over one billion active users.
PATEL V. FACEBOOK 5
Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017).
About seven in ten adults in the United States use Facebook.1
A
When a new user registers for a Facebook account, the
user must create a profile and agree to Facebook’s terms and
conditions, which permit Facebook to collect and use data in
accordance with Facebook’s policies. To interact with other
users on the platform, a Facebook user identifies another user
as a friend and sends a friend request. If the request is
accepted, the two users are able to share content, such as text
and photographs.
For years, Facebook has allowed users to tag their
Facebook friends in photos posted to Facebook. A tag
identifies the friend in the photo by name and includes a link
to that friend’s Facebook profile. Users who are tagged are
notified of the tag, granted access to the photo, and allowed
to share the photo with other friends or “un-tag” themselves
if they choose.
In 2010, Facebook launched a feature called Tag
Suggestions. If Tag Suggestions is enabled, Facebook may
use facial-recognition technology to analyze whether the
user’s Facebook friends are in photos uploaded by that user.
When a photo is uploaded, the technology scans the photo
and detects whether it contains images of faces. If so, the
technology extracts the various geometric data points that
make a face unique, such as the distance between the eyes,
1
See John Gramlich, 10 Facts about Americans and Facebook, Pew
Research Ctr. (May 16, 2019), https://www.pewresearch.org/fact-
tank/2019/05/16/facts-about-americans-and-facebook/.
6 PATEL V. FACEBOOK
nose, and ears, to create a face signature or map. The
technology then compares the face signature to faces in
Facebook’s database of user face templates (i.e., face
signatures that have already been matched to the user’s
profiles).2 If there is a match between the face signature and
the face template, Facebook may suggest tagging the person
in the photo.
Facebook’s face templates are stored on its servers, which
are located in nine data centers maintained by Facebook. The
six data centers located in the United States are in Oregon,
California, Iowa, Texas, Virginia, and North Carolina.
Facebook’s headquarters are in California.
B
Facebook users living in Illinois brought a class action
against Facebook, claiming that Facebook’s facial-
recognition technology violates Illinois law. Class
representatives Adam Pezen, Carlo Licata, and Nimesh Patel
each live in Illinois. They joined Facebook in 2005, 2009,
and 2008, respectively, and each uploaded photos to
Facebook while in Illinois. Facebook created and stored face
templates for each of the plaintiffs.
The three named plaintiffs filed the operative
consolidated complaint in a California district court in August
2015. The plaintiffs allege that Facebook violated the Illinois
Biometric Information Privacy Act (BIPA), 740 Ill. Comp.
2
According to Facebook, it creates and stores a template for a user
when the user (1) has been tagged in at least one photo; (2) has not opted
out of Tag Suggestions; and (3) satisfies other privacy-based and
regulatory criteria.
PATEL V. FACEBOOK 7
Stat. 14/1 et seq. (2008), which provides that “[a]ny person
aggrieved” by a violation of its provisions “shall have a right
of action” against an “offending party,” id. 14/20. According
to the complaint, Facebook violated sections 15(a) and 15(b)
of BIPA by collecting, using, and storing biometric identifiers
(a “scan” of “face geometry,” id. 14/10) from their photos
without obtaining a written release and without establishing
a compliant retention schedule.3
3
Sections 15(a) and (b) of BIPA provide:
(a) A private entity in possession of biometric
identifiers or biometric information must develop a
written policy, made available to the public,
establishing a retention schedule and guidelines for
permanently destroying biometric identifiers and
biometric information when the initial purpose for
collecting or obtaining such identifiers or information
has been satisfied or within 3 years of the individual’s
last interaction with the private entity, whichever occurs
first. Absent a valid warrant or subpoena issued by a
court of competent jurisdiction, a private entity in
possession of biometric identifiers or biometric
information must comply with its established retention
schedule and destruction guidelines.
(b) No private entity may collect, capture, purchase,
receive through trade, or otherwise obtain a person’s or
a customer’s biometric identifier or biometric
information, unless it first:
(1) informs the subject or the subject’s legally
authorized representative in writing that a
biometric identifier or biometric information is
being collected or stored;
(2) informs the subject or the subject’s legally
authorized representative in writing of the specific
8 PATEL V. FACEBOOK
The Illinois General Assembly enacted BIPA in 2008 to
enhance Illinois’s “limited State law regulating the collection,
use, safeguarding, and storage of biometrics.” 740 Ill. Comp.
Stat. 14/5(e). BIPA defines a “biometric identifier” as
including a “scan of hand or face geometry.” Id. 14/10.4 In
a series of findings, the state legislature provided its views
about the costs and benefits of biometric data use. The
legislature stated that “[t]he use of biometrics is growing in
the business and security screening sectors and appears to
promise streamlined financial transactions and security
screenings,” and also noted that “[m]ajor national
corporations have selected the City of Chicago and other
locations in this State as pilot testing sites for new
applications of biometric-facilitated financial transactions.”
Id. 14/5(a)–(b). Nevertheless, “[b]iometrics are unlike other
unique identifiers that are used to access finances or other
sensitive information,” because while social security numbers
purpose and length of term for which a biometric
identifier or biometric information is being
collected, stored, and used; and
(3) receives a written release executed by the
subject of the biometric identifier or biometric
information or the subject’s legally authorized
representative.
740 Ill. Comp. Stat. 14/15 (a)–(b).
4
Section 10 of BIPA defines “biometric identifier” to mean “a retina
or iris scan, fingerprint, voiceprint, or scan of hand or face geometry.”
740 Ill. Comp. Stat. 14/10. Biometric identifiers do not include “writing
samples, written signatures, photographs, human biological samples used
for valid scientific testing or screening, demographic data, tattoo
descriptions, or physical descriptions such as height, weight, hair color, or
eye color.” Id.
PATEL V. FACEBOOK 9
can be changed if compromised by hackers, biometric data
are “biologically unique to the individual,” and “once
compromised, the individual has no recourse, is at heightened
risk for identity theft, and is likely to withdraw from
biometric-facilitated transactions.” Id. 14/5(c). Moreover,
“[t]he full ramifications of biometric technology are not fully
known.” Id. 14/5(f). The legislature concluded that “[t]he
public welfare, security, and safety will be served by
regulating the collection, use, safeguarding, handling, storage,
retention, and destruction of biometric identifiers and
information.” Id. 14/5(g).
To further these goals, section 15 of BIPA imposes
“various obligations regarding the collection, retention,
disclosure, and destruction of biometric identifiers and
biometric information” on private entities. Rosenbach v. Six
Flags Entm’t Corp., — N.E.3d —, 2019 IL 123186, at *4 (Ill.
2019). These requirements include “establishing a retention
schedule and guidelines for permanently destroying biometric
identifiers and biometric information” the earlier of three
years after the individual’s last interaction with the private
entity or “when the initial purpose for collecting or obtaining
such identifiers or information has been satisfied.” 740 Ill.
Comp. Stat. 14/15(a). The statute also requires the private
entity to notify the individual in writing and secure a written
release before obtaining a biometric identifier. Id. 14/15(b).
BIPA also provides for actual and liquidated damages for
violations of the Act’s requirements. Id. 14/20.
C
In June 2016, Facebook moved to dismiss the plaintiffs’
complaint for lack of Article III standing on the ground that
the plaintiffs had not alleged any concrete injury. While
10 PATEL V. FACEBOOK
Facebook’s motion to dismiss was pending, the plaintiffs
moved to certify a class under Rule 23 of the Federal Rules
of Civil Procedure. The district court denied Facebook’s
motion to dismiss, and certified a Rule 23(b)(3) class of
“Facebook users located in Illinois for whom Facebook
created and stored a face template after June 7, 2011.”
Facebook filed a timely petition for leave to appeal the
district court’s ruling under Rule 23(f). Fed. R. Civ. P. 23(f)
(providing that “[a] court of appeals may permit an appeal
from an order granting or denying class-action certification
under this rule”).
We have jurisdiction to review the district court’s order
granting class certification under 28 U.S.C. § 1292(e) and
Rule 23(f) of the Federal Rules of Civil Procedure. We
review de novo whether the plaintiffs have Article III
standing. See In re Zappos.com, Inc., 888 F.3d 1020, 1024
(9th Cir. 2018), as amended (Apr. 20, 2018). The party
invoking federal jurisdiction bears the burden of establishing
the elements of Article III jurisdiction. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992). “At the pleading stage,
general factual allegations of injury resulting from the
defendant’s conduct may suffice,” and we “presume that
general allegations embrace those specific facts that are
necessary to support the claim.” Id. (quotation and alteration
omitted).
II
To establish Article III standing, a plaintiff “must have
suffered an ‘injury in fact’—an invasion of a legally protected
interest which is (a) concrete and particularized; and
(b) actual or imminent, not conjectural or hypothetical.” Id.
at 560 (cleaned up). A plaintiff does not necessarily meet the
PATEL V. FACEBOOK 11
concrete injury requirement “whenever a statute grants a
person a statutory right and purports to authorize that person
to sue to vindicate that right.” Spokeo, Inc. v. Robins, 136 S.
Ct. 1540, 1549 (2016), as revised (May 24, 2016) (Spokeo I).
In other words, for Article III purposes, it is not enough for a
plaintiff to allege that a defendant has violated a right created
by a statute; we must still ascertain whether the plaintiff
suffered a concrete injury-in-fact due to the violation.
A concrete injury need not be tangible. “Although
tangible injuries are perhaps easier to recognize, we have
confirmed in many of our previous cases that intangible
injuries can nevertheless be concrete.” Id. In determining
whether an intangible injury is sufficiently concrete, we
consider both history and legislative judgment. Id. We
consider history because “it is instructive to consider whether
an alleged intangible harm has a close relationship to a harm
that has traditionally been regarded as providing a basis for a
lawsuit in English or American courts.” Id. We must also
examine legislative judgment because legislatures are “well
positioned to identify intangible harms that meet minimum
Article III requirements.” Id.
The Supreme Court has provided some guidance for
determining whether a plaintiff has suffered a concrete injury
due to a defendant’s failure to comply with a statutory
requirement. The violation of a statutory right that protects
against “the risk of real harm” may be sufficient to constitute
injury-in-fact, and under those circumstances a plaintiff “need
not allege any additional harm beyond the one Congress has
identified.” Id. (emphasis in original). But a violation of a
statutory procedural requirement that does not present a
material risk of harm, such as dissemination of “an incorrect
12 PATEL V. FACEBOOK
zip code,” likely does not cause a concrete injury. Id. at
1550.
In light of this guidance, we have adopted a two-step
approach to determine whether the violation of a statute
causes a concrete injury. We ask “(1) whether the statutory
provisions at issue were established to protect [the plaintiff’s]
concrete interests (as opposed to purely procedural rights),
and if so, (2) whether the specific procedural violations
alleged in this case actually harm, or present a material risk
of harm to, such interests.” Robins v. Spokeo, Inc., 867 F.3d
1108, 1113 (9th Cir. 2017) (Spokeo II).
Other cases demonstrate these principles. In Van Patten
v. Vertical Fitness Group, LLC, for instance, we considered
a Telephone Consumer Protection Act (TCPA) requirement
prohibiting a telemarketer from calling or texting a consumer
without the consumer’s consent. 847 F.3d 1037, 1041–43
(9th Cir. 2017). The plaintiff alleged that a telemarketer
violated this prohibition. Id. at 1041. We held that the TCPA
was established to protect the plaintiff’s substantive right to
privacy, namely the right to be free from unsolicited
telemarketing phone calls or text messages that “invade the
privacy and disturb the solitude of their recipients.” Id. at
1043. Because the telemarketer’s conduct impacted this
privacy right, we concluded that the plaintiff did not need to
allege any additional harm beyond the one Congress
identified, and therefore had alleged a concrete injury-in-fact
sufficient to confer Article III standing. Id.
By contrast, in Bassett v. ABM Parking Services, Inc., we
considered a Fair Credit Reporting Act (FCRA) requirement
that businesses redact certain credit card information,
including the card’s expiration date, on printed receipts.
PATEL V. FACEBOOK 13
883 F.3d 776, 777–78 (9th Cir. 2018). The plaintiff alleged
that a parking garage had violated this requirement by giving
him a receipt displaying his card’s full expiration date. Id.
at 778. We held that even if the FCRA created a substantive
right to the “nondisclosure of a consumer’s private financial
information to identity thieves,” the parking garage’s failure
to redact the credit card’s expiration date did not impact this
substantive right, because no one but the plaintiff himself saw
the expiration date. Id. at 782–83. We therefore concluded
that the plaintiff had failed to allege a concrete injury-in-fact.
Id. at 783.
We apply our two-step approach to this case.
A
Facebook argues that the plaintiffs’ complaint describes
a bare procedural violation of BIPA rather than injury to a
concrete interest, and therefore plaintiffs failed to allege that
they suffered an injury-in-fact that is sufficiently concrete for
purposes of standing.5 Plaintiffs, in turn, argue that
Facebook’s violation of statutory requirements amounted to
a violation of their substantive privacy rights, and so they
suffered a concrete injury for purposes of Article III standing.
In addressing these arguments, we first consider “whether
the statutory provisions at issue were established to protect
[the plaintiff’s] concrete interests (as opposed to purely
procedural rights).” Dutta v. State Farm Mut. Auto. Ins. Co.,
895 F.3d 1166, 1174 (9th Cir. 2018) (alteration in original)
(quoting Spokeo II, 867 F.3d at 1113). Privacy rights have
5
Facebook does not argue that the plaintiffs’ alleged injury-in-fact is
insufficiently particularized.
14 PATEL V. FACEBOOK
long been regarded “as providing a basis for a lawsuit in
English or American courts.” Spokeo I, 136 S. Ct. at 1549.
The common law roots of the right to privacy were first
articulated in the 1890s in an influential law review article
that reviewed 150 years of privacy-related case law and
identified “a general right to privacy” in various common law
property and defamation actions. Samuel D. Warren & Louis
D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198
(1890). Courts subsequently recognized that a distinct right
to privacy existed at common law, see, e.g., Pavesich v. New
England Life Ins. Co., 50 S.E. 68, 69–71 (Ga. 1905), and
treatises later identified four privacy torts recognized at
common law, including “unreasonable intrusion upon the
seclusion of another,”6 Restatement (Second) of Torts
§ 652A. Soon, “the existence of a right of privacy [was]
recognized in the great majority of the American jurisdictions
that have considered the question.” Restatement (Second) of
Torts § 652A cmt. a.
6
The Restatement (Second) of Torts § 652A(2) (1977) provides:
The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of
another, as stated in § 652B; or
(b) appropriation of the other’s name or likeness,
as stated in § 652C; or
(c) unreasonable publicity given to the other’s
private life, as stated in § 652D; or
(d) publicity that unreasonably places the other in
a false light before the public, as stated in § 652E.
PATEL V. FACEBOOK 15
The Supreme Court has likewise recognized the
common law roots of the right to privacy. See U.S. Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 763 & n. 15 (1989) (recognizing the common law’s
protection of a privacy right); Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469, 488 (1975) (noting that a right of
privacy had been recognized at common law in the majority
of American jurisdictions). We have also recognized the
common law roots of the right to privacy. See Eichenberger
v. ESPN, Inc., 876 F.3d 979, 983 (9th Cir. 2017) (“Violations
of the right to privacy have long been actionable at common
law.”); Van Patten, 847 F.3d at 1043 (“Actions to remedy
defendants’ invasions of privacy, intrusion upon seclusion,
and nuisance have long been heard by American courts, and
the right of privacy is recognized by most states.”) (citing
Restatement (Second) of Torts § 652B).
These common law privacy rights are intertwined with
constitutionally protected zones of privacy. See Gibson v.
Fla. Legislative Investigation Comm., 372 U.S. 539, 569 n.7
(1963) (Douglas, J., concurring) (“A part of the philosophical
basis of [the First Amendment right to privacy] has its roots
in the common law.”); see also Kyllo v. United States,
533 U.S. 27, 34 (2001) (“[I]n the case of the search of the
interior of homes—the prototypical and hence most
commonly litigated area of protected privacy—there is a
ready criterion, with roots deep in the common law, of the
minimal expectation of privacy that exists, and that is
acknowledged to be reasonable.” (emphasis in original)). As
one commentator summed up, “[d]espite the differences
between tort law and constitutional protections of privacy, it
is still reasonable to view the interests and values that each
protect as connected and related.” Eli A. Meltz, Note, No
Harm, No Foul? “Attempted” Invasion of Privacy and the
16 PATEL V. FACEBOOK
Tort of Intrusion Upon Seclusion, 83 Fordham L. Rev. 3431,
3437 (2015).
In its recent Fourth Amendment jurisprudence, the
Supreme Court has recognized that advances in technology
can increase the potential for unreasonable intrusions into
personal privacy. These concerns extend to sense-enhancing
thermal imaging, see Kyllo, 533 U.S. at 34; GPS monitoring
for extended periods of time, see United States v. Jones,
565 U.S. 400, 416, 428 (2012) (Sotomayor, J., concurring,
and Alito, J., concurring) (five justices agreeing that privacy
concerns are raised by such monitoring, as later recognized in
Carpenter v. United States, 138 S. Ct. 2206, 2215 (2018));
modern cell phone storage of “vast quantities of personal
information,” Riley v. California, 573 U.S. 373, 386 (2014);
and technological advances in tracking cell-site location
information, see Carpenter, 138 S. Ct. at 2215.
Technological advances provide “access to a category of
information otherwise unknowable,” id. at 2218, and
“implicate privacy concerns” in a manner as different from
traditional intrusions as “a ride on horseback” is different
from “a flight to the moon,” Riley, 573 U.S. at 393.
In light of this historical background and the Supreme
Court’s views regarding enhanced technological intrusions on
the right to privacy, we conclude that an invasion of an
individual’s biometric privacy rights “has a close relationship
to a harm that has traditionally been regarded as providing a
basis for a lawsuit in English or American courts.” Spokeo I,
136 S. Ct. at 1549. “[B]oth the common law and the literal
understandings of privacy encompass the individual’s control
of information concerning his or her person.” Reporters
Comm., 489 U.S. at 763. As in the Fourth Amendment
context, the facial-recognition technology at issue here can
PATEL V. FACEBOOK 17
obtain information that is “detailed, encyclopedic, and
effortlessly compiled,” which would be almost impossible
without such technology. Carpenter, 138 S. Ct. at 2216.
Once a face template of an individual is created, Facebook
can use it to identify that individual in any of the other
hundreds of millions of photos uploaded to Facebook each
day, as well as determine when the individual was present at
a specific location. Facebook can also identify the
individual’s Facebook friends or acquaintances who are
present in the photo. Taking into account the future
development of such technology as suggested in Carpenter,
see 138 S. Ct. at 2216, it seems likely that a face-mapped
individual could be identified from a surveillance photo taken
on the streets or in an office building. Or a biometric face
template could be used to unlock the face recognition lock on
that individual’s cell phone. We conclude that the
development of a face template using facial-recognition
technology without consent (as alleged here) invades an
individual’s private affairs and concrete interests. Similar
conduct is actionable at common law.
The judgment of the Illinois General Assembly, which is
“instructive and important” to our standing inquiry, Spokeo
II, 867 F.3d at 1112 (quotation omitted), supports the
conclusion that the capture and use of a person’s biometric
information invades concrete interests. As noted above, in
enacting BIPA, the General Assembly found that the
development and use of biometric data presented risks to
Illinois’s citizens, and that “[t]he public welfare, security, and
safety will be served by regulating the collection, use,
safeguarding, handling, storage, retention, and destruction of
biometric identifiers and information.” 740 Ill. Comp. Stat.
14/5(g). Interpreting the statute, the Illinois Supreme Court
concluded that “[t]he strategy adopted by the General
18 PATEL V. FACEBOOK
Assembly through enactment of [BIPA]” was to protect
individuals’ “biometric privacy” by (1) “imposing safeguards
to insure that individuals’ and customers’ privacy rights in
their biometric identifiers and biometric information are
properly honored and protected to begin with, before they are
or can be compromised,” and (2) “by subjecting private
entities who fail to follow the statute’s requirements to
substantial potential liability.” Rosenbach, 2019 IL 123186,
at *6–7. Based on this interpretation, the Illinois Supreme
Court concluded that an individual could be “aggrieved” by
a violation of BIPA whenever “a private entity fails to
comply with one of section 15’s requirements,” because “that
violation constitutes an invasion, impairment, or denial of the
statutory rights of any person or customer whose biometric
identifier or biometric information is subject to the breach.”
Id. at *6. Individuals are not required to sustain a
“compensable injury beyond violation of their statutory rights
before they may seek recourse.” Id. at *7.
Therefore, we conclude that “the statutory provisions at
issue” in BIPA were established to protect an individual’s
“concrete interests” in privacy, not merely procedural rights.
Spokeo II, 867 F.3d at 1113.
B
We next turn to the question “whether the specific
procedural violations alleged in this case actually harm, or
present a material risk of harm to, such interests.” Spokeo II,
867 F.3d at 1113. Facebook’s relevant conduct, according to
the complaint, is the collection, use, and storage of biometric
identifiers without a written release, in violation of
section 15(b), and the failure to maintain a retention schedule
or guidelines for destroying biometric identifiers, in violation
PATEL V. FACEBOOK 19
of section 15(a). The plaintiffs allege that a violation of these
requirements allows Facebook to create and use a face
template and to retain this template for all time. Because the
privacy right protected by BIPA is the right not to be subject
to the collection and use of such biometric data, Facebook’s
alleged violation of these statutory requirements would
necessarily violate the plaintiffs’ substantive privacy
interests. As the Illinois Supreme Court explained, the
procedural protections in BIPA “are particularly crucial in our
digital world” because “[w]hen a private entity fails to adhere
to the statutory procedures . . . the right of the individual to
maintain his or her biometric privacy vanishes into thin air.”
Rosenbach, 2019 IL 123186, at *6 (cleaned up).
Accordingly, we conclude that the plaintiffs have alleged a
concrete injury-in-fact sufficient to confer Article III
standing.
We reached a similar conclusion in Eichenberger, which
considered whether a plaintiff had standing to bring a
complaint alleging a violation of the Video Privacy Protection
Act, which barred a videotape provider from knowingly
disclosing “personally identifiable information concerning
any consumer of such provider.” 876 F.3d at 983 (quoting
18 U.S.C. § 2710(b)(1)). We concluded that the plaintiff had
Article III standing because every unlawful disclosure of an
individual’s personally identifiable information and video-
viewing history offended the individual’s “substantive
privacy interest in his or her video-viewing history.” Id.
Under the common law, an intrusion into privacy rights by
itself makes a defendant subject to liability. See Restatement
(Second) of Torts § 652B. In other words, “privacy torts do
not always require additional consequences to be actionable.”
Eichenberger, 876 F.3d at 983 (citing Restatement (Second)
20 PATEL V. FACEBOOK
of Torts § 652B cmt. b); see also Van Patten, 847 F.3d at 1043.
Given the nature of the alleged violation of BIPA,
Facebook’s reliance on Bassett v. ABM Parking Services,
Inc., 883 F.3d at 780, is misplaced. Although the parking
service in that case technically violated the FCRA by failing
to redact a credit card’s expiration date, that violation did not
cause a disclosure of the consumer’s private financial
information, the substantive harm the FCRA was designed to
vindicate. Id. at 782–83. By contrast, Facebook’s alleged
collection, use, and storage of plaintiffs’ face templates here
is the very substantive harm targeted by BIPA. Because we
conclude that BIPA protects the plaintiffs’ concrete privacy
interests and violations of the procedures in BIPA actually
harm or pose a material risk of harm to those privacy
interests, see Dutta, 895 F.3d at 1174, the plaintiffs have
alleged a concrete and particularized harm, sufficient to
confer Article III standing.
III
We now turn to Facebook’s argument that the district
court abused its discretion by certifying the class. We review
a district court’s order granting class certification for abuse of
discretion, Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996,
1002 (9th Cir. 2018), as amended (Nov. 27, 2018), but give
the district court “noticeably more deference when reviewing
a grant of class certification than when reviewing a denial,”
Just Film, Inc. v. Buono, 847 F.3d 1108, 1115 (9th Cir. 2017)
(quotation omitted). An error of law is “a per se abuse of
discretion.” Sali, 909 F.3d at 1002 (quotation omitted). We
review the district court’s findings of fact for clear error, and
its legal conclusions de novo. See id.
PATEL V. FACEBOOK 21
First, Facebook urges that class certification is not
compatible with Rule 23(b)(3) of the Federal Rules of Civil
Procedure, which requires that “questions of law or fact
common to class members predominate over any questions
affecting only individual members.” Fed. R. Civ. P. 23(b)(3).
According to Facebook, the Illinois extraterritoriality doctrine
precludes the district court from finding predominance.
The Illinois Supreme Court has held that it is a “long-
standing rule of construction in Illinois” that “a ‘statute is
without extraterritorial effect unless a clear intent in this
respect appears from the express provisions of the statute.’”
Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 852
(Ill. 2005) (quoting Dur-Ite Co. v. Indus. Comm’n, 68 N.E.2d
717, 722 (Ill. 1946)). In the absence of such an intent, an
Illinois plaintiff may not maintain a cause of action under a
state statute for transactions that took place outside of Illinois.
Id. at 853. When a case is “made up of components that
occur in more than one state,” plaintiffs may maintain an
action only if the events that are necessary elements of the
transaction occurred “primarily and substantially within”
Illinois. Id. at 853–54.
Facebook insists that the Illinois legislature did not intend
for the BIPA to have extraterritorial effect, and in the absence
of such an intent, a court would have to consider whether the
relevant events at issue took place inside or outside Illinois.
Facebook argues that its collection of biometric data and
creation of a face template occurred on its servers outside of
Illinois, and therefore the necessary elements of any violation
occurred extraterritorially. At best, Facebook argues, each
class member would have to provide individualized proof that
events in that class member’s case occurred “primarily and
substantially within” Illinois; for instance, that the member
22 PATEL V. FACEBOOK
was in Illinois when the scanned photo was taken or
uploaded, when a facial recognition analysis was performed,
when the photo was tagged or given a tag suggestion, or for
similar events. Because the district court would have to
conduct countless mini-trials to determine whether the events
in each plaintiff’s case occurred “primarily and substantially
within” Illinois, Facebook posits, common questions do not
predominate, and the district court erred in certifying the
class.
We disagree. The parties’ dispute regarding
extraterritoriality requires a decision as to where the essential
elements of a BIPA violation take place. The statute does not
clarify whether a private entity’s collection, use, and storage
of face templates without first obtaining a release, or a private
entity’s failure to implement a compliant retention policy, is
deemed to occur where the person whose privacy rights are
impacted uses Facebook, where Facebook scans photographs
and stores the face templates, or in some other place or
combination of places. Given the General Assembly’s
finding that “[m]ajor national corporations have selected the
City of Chicago and other locations in this State as pilot
testing sites for new applications of biometric-facilitated
financial transactions,” 740 Ill. Comp. Stat. 14/5, it is
reasonable to infer that the General Assembly contemplated
BIPA’s application to individuals who are located in Illinois,
even if some relevant activities occur outside the state. These
threshold questions of BIPA’s applicability can be decided on
a class-wide basis. If the violation of BIPA occurred when
the plaintiffs used Facebook in Illinois, then the relevant
events occurred “primarily and substantially” in Illinois, and
PATEL V. FACEBOOK 23
there is no need to have mini-trials on this issue.7 If the
violation of BIPA occurred when Facebook’s servers created
a face template, the district court can determine whether
Illinois’s extraterritoriality doctrine precludes the application
of BIPA. In either case, predominance is not defeated. And
of course, if future decisions or circumstances lead to the
conclusion that extraterritoriality must be evaluated on an
individual basis, the district court can decertify the class. See
Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 633
(9th Cir.1982) (“[A] district court’s order respecting class
status is not final or irrevocable, but rather, it is inherently
tentative.”); see also Fed. R. Civ. P. 23(c)(1)(C) (“An order
that grants or denies class certification may be altered or
amended before final judgment.”).
Second, Facebook argues that the district court abused its
discretion by certifying the class because a class action is not
superior to individual actions. “Rule 23(b)(3) requires that a
class action be ‘superior to other available methods for fairly
and efficiently adjudicating the controversy,’ and it
specifically mandates that courts consider ‘the likely
difficulties in managing a class action.’” Briseno v. ConAgra
Foods, Inc., 844 F.3d 1121, 1127–28 (9th Cir. 2017) (quoting
Fed. R. Civ. P. 23(b)(3)(D)). According to Facebook, the
possibility of a large, class-wide statutory damages award
here defeats superiority.
We disagree. The question “whether the potential for
enormous liability can justify a denial of class certification
depends on [legislative] intent.” Bateman v. Am. Multi-
7
The district court found that this case involves only plaintiffs who
are located in Illinois, and the claims are based on the application of
Illinois law to the use of Facebook mainly in Illinois.
24 PATEL V. FACEBOOK
Cinema, Inc., 623 F.3d 708, 722 (9th Cir. 2010). Where
neither the statutory language nor legislative history indicates
that the legislature intended to place a cap on statutory
damages, denying class certification on that basis would
“subvert [legislative] intent.” Id. at 722–23; cf. Kline v.
Coldwell, Banker & Co., 508 F.2d 226, 228, 235 (9th Cir.
1974) (holding that a potential liability of $750 million under
the Sherman Act would be inconsistent with congressional
intent in enacting the statutory damages provision because
treble damages were “not remedial” but “punitive”). Here,
nothing in the text or legislative history of BIPA indicates
that a large statutory damages award would be contrary to the
intent of the General Assembly. Therefore, the district court
did not abuse its discretion in determining that a class action
is superior to individual actions in this case. See Fed. R. Civ.
P. 23(b)(3).8
AFFIRMED.
8
In its brief on appeal, Facebook also argued that only a “person
aggrieved” by a BIPA violation could bring a private cause of action, and
therefore the plaintiff must allege some harm beyond a violation of the
statute itself. Facebook claimed that because each plaintiff must allege
such individualized harms, predominance under Rule 23 of the Federal
Rules of Civil Procedure was defeated. Because Facebook’s interpretation
of BIPA was rejected by the Illinois Supreme Court, see Rosenbach, 2019
IL 123186, at *4, which was decided after the briefing in this case, this
argument is foreclosed.