A class action lawsuit has been allowed to move forward against Facebook for taking users’ facial biometric data and using it for their own personal gain. Facebook has increasingly been in the spotlight for taking your data without your knowledge, and now they are finally feeling the consequences. Ring of Fire’s Mike Papantonio and Peter Mougey discuss this.


Mike Papantonio: Hey, this story, facial recognition, people probably don’t know this story. Class action was filed by a friend of ours.

Peter Mougey: Yeah, Geller.

Mike Papantonio: Geller, Paul Geller’s actually a friend of ours that we’re working on the opioid, national opioid, case with. A very good lawyer. He filed a case that said that … His class action case. We said that Facebook is trying to gather information with facial data recognition and harvesting. What’s your take on this case?

Peter Mougey: Well, first of all-

Mike Papantonio: You’ve handled-

Peter Mougey: Yeah, yeah. These are a line of cases that are coming from all over the country and the Facebook case about taking your facial recognition and using it and storing it. There’s actually some acts around the country that prohibit that from a privacy perspective that you can’t take those biometric measurements off of somebody’s face and use them. But here’s what I think is interesting. The way these cases are losing and it’s not just this kind of case, it’s also the data breach cases, is the argument from the defense is that there’s no harm. That part of the Article III standing to bring a case is you have to demonstrate-

Mike Papantonio: Actual harm.

Peter Mougey: … actual harm.

Mike Papantonio: Like actual harm.

Peter Mougey: But where I get a little uncomfortable with this is if somebody steals your data, your information, your drivers license number, your social security, and you can’t show that it’s actually been used to cause you any financial harm, or in this case, so they stole a picture of your biometric, Facebook did. You can’t show any harm. So a lot of courts are kicking these cases out around the country and the case law’s developing. But I’ll tell you what, if you’ve gotten your information stolen and then somebody tells you you don’t have any harm, I don’t think you might-

Mike Papantonio: Okay, look, let’s say that somebody was a celebrity. Okay?

Peter Mougey: Yeah.

Mike Papantonio: I’ve taken that celebrity’s facial information, I’m going to use it somewhere. There’s a dollar value on that. I mean, that’s clear.

Peter Mougey: Oh, yeah.

Mike Papantonio: That’s a little more clear.

Peter Mougey: I think that’s clear.

Mike Papantonio: But the argument has always been that, yeah, we did this. The ugly thing is, yeah, we did this and unfortunately we got caught doing this thing.

Peter Mougey: Right.

Mike Papantonio: That’s basically their defense. We did it, we got caught doing it. I wish we hadn’t gotten caught. But you know what, judge, even though we got caught, there’s really no … There’s a violation, yeah, but there’s no damage to the violation. And really what the violation comes down to is notice to that person and consent by that person to say, “Yeah, you can take images of my face. You can store the data, you can do whatever you want to with it.”

Peter Mougey: But this is the second time Facebook’s popped up in the last few weeks.

Mike Papantonio: Yeah, Spokane. Yeah, talk about that.

Peter Mougey: Absolutely.

Mike Papantonio: The Virginia case.

Peter Mougey: The Virginia case, which is the … Is that the case about Robbins? No, that’s [crosstalk 00:02:42]

Mike Papantonio: No, the Virginia-

Peter Mougey: Oh, the Virginia man.

Mike Papantonio: Yeah.

Peter Mougey: That was that he couldn’t sue an online search engine for posting inaccurate information until he suffered an actual harm-

Mike Papantonio: Actual … The term is actual-

Peter Mougey: Actual harm.

Mike Papantonio: Actual harm is how they try to describe. There’s no actual harm. But what the 9th Circuit said different.

Peter Mougey: 9th Circuits said different, which, of course, that’s California and a little bit more liberal that has a little more liberal standard that says, you know, economic status could cause concrete harm. That could affect your ability to get a job, unlike more innocuous information about a wrong zip code. But, I mean, you can get your … There’s a lot of circuits around the country that said you can get your personal information stolen, but as long as you can’t demonstrate somebody actually use it to get a credit card or charge against you, you don’t have actual harm, a concrete harm. So the definition of concrete harm is what the turn key is here. And that standard needs to be broadened because [crosstalk 00:03:32] otherwise there’s no, hey look, we don’t have to really pay to keep your information safe because there’s no ramifications for hackers.

Mike Papantonio: Yeah. Let me point something out. State legislators can do something about this. For example, Illinois.

Peter Mougey: Right.

Mike Papantonio: In Illinois, there’s a very clear statute. It’s an enacted statute because they went ahead and looked at this whole cyber problem and they said, “We have a statute that if you do, if Facebook does these things and they don’t get consent and they don’t get notice, the person doesn’t get notice and consent that there’s a statutory kind of recovery.” Every state could do that and, as a matter of fact, depending on what Paul Geller, our friend, does out in California, they may have to end up doing that. Don’t you think? Sometimes a big lawsuit like that changes the way-

Peter Mougey: Absolutely, and now there’s enough mass of these cases from around the country that should push them. I mean, one of the issues in the Illinois statute was even your facial geometry, so facial recognition that they’re using. Have you used that clear thing in the airport where you put your fingers on it? It’s incredible. What kind of information pops up on those things.

Mike Papantonio: I know.

Peter Mougey: It’s a little scary.

Mike Papantonio: It it.

Peter Mougey: The standard needs to be broadened up to protect us at the end of the day.

Mike Papantonio: For sure.

Mike Papantonio is an American attorney and television and radio talk show host. He is past president of The National Trial Lawyers, the most prestigious trial lawyer association in America; and is one of the few living attorneys inducted into the Trial Lawyer Hall of Fame. He hosts the international television show "America's Lawyer"; and co-hosts Ring of Fire Radio, a nationally syndicated weekly radio program, with Robert F. Kennedy, Jr. and Sam Seder.