
9th Circuit says users can sue Facebook over unlawful use of facial recognition - datapolitical
https://www.aclu-il.org/en/press-releases/federal-court-rules-facebook-users-can-sue-company-over-unlawful-use-face-recognition
======
fiter
_In an opinion by Judge Ikuta, the court “concludes 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.” As the
court explained, “the facial-recognition technology at issue here can obtain
information that is ‘detailed, encyclopedic, and effortlessly compiled,’ which
would be almost impossible without such technology.”_

Possessing a picture of someone's face is OK, but creating a model that
represents that face is not OK if that model can be compared to another
picture to categorize it.

Possessing a picture of someones face is OK, and having a human create a
mental model that represents that face is OK as well even if that can be
compared to another picture to categorize it.

The argument seems to center around how easy/hard or expensive/cheap the
process is.

~~~
akersten
The argument to me centers around the same terrible "but do it on a computer"
sentiment that's been brandished to outlaw things that would otherwise be
perfectly legal in meatspace. But something about doing normal things
electronically is scary, and since it's easy to ban, that's the hammer we
have.

Other examples include:

* Trading card game booster packs vs. video game loot boxes

* Taking notes about people who visit your physical store vs. taking notes about people who browse to your website

That said - I do realize I'm in the minority opinion here re: GDPR, etc. But
the inconsistency really disturbs me, I don't agree with a ban on facial
recognition: who is to tell someone what they can and can't do with a bucket
of bits? What about other automated recognition for content moderation -
surely automatically detecting nudity is OK by the law? But what if those
recognition models wind up doing some form of emergent facial recognition via
unsupervised learning? How could someone even verify that?

~~~
ace_of_spades
Let‘s make a short thought experiment... imagine Superman just came to earth
and has perfect memory and the possibility trace your (and everyone else‘s)
every footstep with his superhuman hearing and vision. Would that require new
laws to deal with him or would you simply carry on as is because „it‘s
Superman! He won‘t do evil...“?

It‘s not „but do it on a computer“ rather it‘s „but when it becomes
unprecedented“...

We are facing a completely new type of society where these types of entities
are very likely to exist, we need to figure out how to deal with this.

~~~
akersten
You're correct that the technology is unprecedented.

But, there's a lot of unprecedented technology invented every day. And for the
most part we do just carry on as usual. That's part of what made the original
internet such a beautiful place - we didn't try to waterlog it with proactive
legislation because of potential bad things that could happen. Instead, that
freedom created the wonderful ecosystem we have today.

The (US) law eventually reacted, but for the most part did so in a measured
and reasonable fashion to form things like DMCA and CFAA.

Conversely, it's my opinion that _proactive_ lawmaking leads to disastrous and
overly broad, unenforceable, and burdensome laws like SOPA and CALEA. And I
see this kind of ban on facial recognition to be firmly in the _proactive_
category.

~~~
ace_of_spades
I guess the main difference between now and then is that we are starting to
have an idea of what is going to be possible and already see “dark uses” of
technology happening (e.g., surveillance in china) whereas beforehand we were
clueless about those things.

I think that rejecting proactive legislation per se is a dangerous attitude.
For example, see climate change. Proactive legislation could have made us
avoid all of the discussions we are now working through during crunch time...

If we have reasonable evidence that there is a high likelihood of us creating
worlds that we don’t want to live in, we should take reasonable action
proactively to avoid those scenarios.

Thus, I agree with you that not all unprecedented technologies need to be
proactively legislated but as soon as there is reasonable evidence for
possible negative consequences we should start reasonable processes to avoid
those consequences. There is no black or white situation here, we need to have
evidence based discussions and work our way through this collectively.

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OldHand2018
This case is about whether they can be held accountable; it has already been
established that they knowingly violated the law. The law says that the
aggrieved party can sue for $1000 to $5000 per violation, and Facebook
violated the law millions of times.

~~~
reaperducer
_The law says that the aggrieved party can sue for $1000 to $5000 per
violation, and Facebook violated the law millions of times._

Move over, mesothelioma TV commercials. We have a new target for the bottom-
feeding lawyers.

~~~
MBCook
Good. Maybe they can extract a fee from FB that will actually hurt them.

~~~
heartbreak
Legal industry reporting calls the underlying matter a "$30 billion class
action lawsuit," so it'll be interesting to see how that matter proceeds now
that Facebook has lost its first dispute against standing.

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toxicFork
Google photos is tracking my face and anyone else whose photos I have taken
from my phone and I cannot turn this off. They enable a "search photos by
people" feature. I find this creepy and ominous. I never asked for this.

Can I sue them for them to stop?

~~~
drusepth
You can choose to turn off this feature in settings:
[https://photos.google.com/settings](https://photos.google.com/settings)

Screenshot of the relevant settings:
[https://i.imgur.com/Xg4wkPV.png](https://i.imgur.com/Xg4wkPV.png)

According to their relevant help page about it
([https://support.google.com/photos/answer/6128838?co=GENIE.Pl...](https://support.google.com/photos/answer/6128838?co=GENIE.Platform%3DAndroid&hl=en)),
turning the setting off also deletes:

\- Face groups in your account

\- Face models used to create those face groups

\- Face labels you created

~~~
toxicFork
Thank you, this works!

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mnw21cam
Why just users? Surely people who _haven 't_ signed up to Facebook, but have
their photos uploaded by someone else and subsequently analysed, should be
included?

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windexh8er
How would this apply in a situation wherein a person uploads a picture of a
minor that they are not the legal guardian for? Could that person sue the
uploader of the photo for damages of having to go after Facebook? If
situations like that are feasible under this then I would expect K-12 school
districts to implement swift measure to ban all teachers from taking pictures
of students as to avoid putting themselves in the middle. I find it egregious
public schools don't have better policy on banning social media uploads of
minors since it's such a gray area right now.

~~~
cgriswald
When my kid was in elementary school we were expected to sign a “students in
media” waiver that basically let them use the pictures they took of the
children however they wanted. I don’t know if it was required but it was
heavily pushed and included with a packet of about a thousand things to sign,
most of which were required.

I never signed it. I just included the unsigned piece of paper (among others I
disagreed with) in amongst the pile of papers I turned in to them. Nothing
ever came of not signing but I suspect I could sue them now.

~~~
cameronbrown
Honestly, I think this practice is horrible. Kids don't deserved to be
plastered all over Facebook by their school. It's deeply uncomfortable.

~~~
astronautjones
it's cultural, too - there are many super popular apps for obscuring your kids
face in Japan (or amongst japanese baseball players in the US, if you want to
find some easy examples)

~~~
koolba
What’s the Japanese baseball player reference here?

~~~
chillydawg
Probably they're Japanese players bought by us teams and so bring their
families over. They're not immigrants and will likely go home and they're
culturally Japanese, so I expect they practice Japanese norms on social media
like obscuring their children's faces when posting.

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samstave
Ok well at risk of being cease and desisted again by FB, in addition to them
doing facial recognition - they take pictures and track every vehicle that
drives by their HQ and report all those license plates back to Menlo Park.

Its an invasion of privacy of all cars and drivers in the vicinity and should
be illegal.

Fuck facebook.

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dfeojm-zlib
One or more US federal agencies place innocent people who happen to work in a
sensitive industry on one or more types of watch list that they scrape
associated metadata and facial recognition to detect an association with
suspicious people/criminals/persons of interest. I know this for a fact
because one of my friends at a big name malware forensics got a call from his
manager that the government noticed he was tagged in a picture at a conference
after-party with someone who was on a "baddies" watchlist.

------
bubble_talk
2009: Are you smart enough to be a Facebook engineer?

2019: Are you scummy enough to be a Facebook engineer?

~~~
thecupisblue
This is so true. The way they are acting I feel like with people inclining
towards "ethical" side of the spectrum leaving facebook and the culture is
going to shift more and more into unethical.

~~~
yulaow
honest question: do you think there was a moment in the history of facebook in
which it was ethical, excluding the very beginning period?

~~~
hoseja
The very beginning? Doesn't the famous Zuck quote put even that into the
scummy period?

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onetimemanytime
here comes the lawsuit settlement: $147 Million for the lawyers, $5 million
for the state and $3 million total for the users that spend 10 hours filling
forms.

In other words, this is ineffective. I hope EU cripples them, not even $5B FTC
fines scare them.

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saagarjha
This only appears to apply in Illinois, unfortunately.

~~~
munk-a
It's sad it's so limited, but it might spread!

~~~
dvtrn
It appears limited according to the article because of an existing statute
found in Illinois law.

Does anyone know if other states have similar laws? Wonder what type of
momentum would have to manifest for other state legislatures to get a similar
bill into committee for debate

~~~
_jal
A related effort is restricting what state and local gov can do with facial
recognition. The cities of San Francisco, CA and Somerville, MA have passed
ordinances, and NYC is considering it (as if the NYPD cares) but city bans
obviously have major limitations.

It looks to me like momentum on facial recognition is building now. Call your
state reps, tell your friends, find folks who feel the same way and make some
noise.

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thwythwy
9th Circuit.

~~~
datapolitical
I had it right initially but got confused because Illinois isn't 9th circuit.
But Facebook is.

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isoskeles
I find this sort of litigiousness to be bullshit because it incentivizes
signing up for Facebook. I can't be party to some lawsuit against Facebook if
I don't have an account ("users").

I deleted my Facebook a few years ago, so if some class-action suit comes out
for people who were users in 2018+, where's my payout? How is such a system
fair to people who had the sense to either delete before whatever time horizon
is used in a case or people who never created an account? None of these people
who could win the lottery in court suffered a real loss.

~~~
matt-tingen
Why do you feel entitled to a payout for an event in which you were not
involved and for which you experienced no damages?

~~~
isoskeles
I don't. I don't think anyone is entitled to a payout, as Facebook users did
not pay Facebook causing some sort of breach of contract. They are owed
nothing IMO.

Yet the legal system gives people an incentive here to sign up for free
services so they can one day reap the rewards when Free Service X slips up and
breaks State Law Y. Admittedly, the rewards will be small. But nonetheless, it
is an incentive and aggregated across society it isn't nothing.

This sort of litigious behavior just slides us further and further into a
culture of dishonesty and makes a mockery of the justice system.

Also, let me be more specific given there's another thread on here about this.
What makes _anyone_ think they're entitled to _" $5,000"_ for signing up for a
free service and uploading their photos to it? This is absurd. Please explain
specifically how running a facial recognition algorithm on person's photos is
equivalent to "$5,000" worth of damages. Where did that number come from? Why
not $1 or $1,000,000?

~~~
mikeash
Maybe Free Service X should avoid breaking State Law Y.

~~~
isoskeles
Maybe people should stop using Facebook.

