Jay Edelson

Facebook’s Tag Suggestions System

The Facebook case began with an ordinary act on a social network: someone uploaded a photograph. Facebook’s Tag Suggestions system then looked for faces, processed them, and proposed names. Carlo Licata, an Illinois Facebook user, sued in 2015 over that process. Jay Edelson represented Licata, and Edelson PC served with Robbins Geller Rudman & Dowd and Labaton Sucharow as one of three firms appointed to represent the certified class.

The courts described the product in four stages. Detection found a face inside an uploaded image. Alignment placed the face in a standardized position. Representation converted it into a numerical “face signature.” Classification compared that signature with stored templates associated with Facebook users and generated a tag suggestion when it found a match. Facebook discarded the signature from the individual image while retaining the user template. The stored template became the biometric object at issue.

Illinois’s Biometric Information Privacy Act supplied the legal sequence. The statute excludes photographs from its definition of a biometric identifier but includes a scan of face geometry. Section 15(b) requires a private entity, before collecting or obtaining a person’s biometric identifier or biometric information, to give written notice of the collection, its purpose, and its duration, and to receive a written release. Section 15(a) requires a public retention schedule and guidelines for permanent destruction. The plaintiffs alleged that Facebook used photographs to create and store biometric templates without giving the notice, obtaining the consent, or publishing the retention rules BIPA required.

The plaintiffs initially proposed a class that included people shown in photographs uploaded to Facebook in Illinois. The district court rejected that formulation as overbroad because many photographed people might never have been subjected to the process the suit challenged. It certified a narrower class: Facebook users located in Illinois for whom Facebook created and stored a face template after June 7, 2011. Membership required Facebook to have created and stored the user’s template; appearing in a photograph alone did not place someone in the class.

Before the class was certified, the plaintiffs also had to keep Illinois law in the case. Facebook invoked the California choice-of-law clause in its user agreement. After briefing and an evidentiary hearing, Judge James Donato held that Illinois law applied. Illinois had enacted BIPA to protect a privacy interest it regarded as fundamental, and applying California law would have displaced that policy for Illinois users. The ruling allowed the plaintiffs to pursue their claim under BIPA while leaving liability for later proceedings.

Edelson appeared as counsel for Licata, was listed among the Edelson PC lawyers representing the class in the Ninth Circuit, and personally signed the amended settlement agreement on behalf of the plaintiffs and the class. John A. Lawson of Edelson PC argued the Ninth Circuit appeal; Ryan Andrews of the firm was counsel of record when Facebook sought Supreme Court review; and three firms served as class counsel.

The Litigation and the Revised Settlement

The next threshold dispute concerned federal standing. Facebook argued that a statutory violation, without an additional injury, did not belong in federal court. The district court held that the alleged creation of face templates without the required notice and consent implicated a concrete privacy interest: the ability to control information about one’s own body. In 2019, the Ninth Circuit agreed. It affirmed both standing and class certification, reasoning that the alleged development of a face template without consent invaded the private affairs and concrete interests BIPA protects. The Supreme Court later denied Facebook’s petition for review.

Those rulings allowed the case to proceed while reserving liability for summary judgment or trial. At summary judgment, the parties offered conflicting accounts of the software. The plaintiffs pointed to technical materials describing facial alignment around the eyes, nose, and mouth and to an expert who said the code used facial landmarks. Facebook’s expert said the system analyzed pixels and learned for itself which combinations distinguished images, without expressly measuring features a person would recognize as geometry. Judge Donato concluded that a jury would have to resolve what the technology actually did. He denied summary judgment to both sides.

Other trial questions remained open as well. The relevant servers were outside Illinois, which raised disputes about where the conduct occurred. The parties disagreed over whether Facebook had obtained consent and whether it had acted negligently, recklessly, or in a good-faith belief that BIPA did not apply. Each question affected exposure under a statute that then provided liquidated damages of $1,000 for a negligent violation and $5,000 for an intentional or reckless one. The final approval order identified each issue as a substantial risk at trial and on appeal.

A settlement in principle arrived shortly before a trial-setting conference. The first proposal offered a $550 million fund, but Judge Donato denied preliminary approval because of the discount from potential statutory damages, a conduct remedy that did not appear to require meaningful changes, an overbroad release, and shortcomings in notice. The parties returned to negotiation and increased the fund while revising the release, notice, and product terms.

The amended agreement added $100 million, creating a $650 million non-reversionary common fund. It also required Facebook to set Face Recognition to “off” for users who had not affirmatively opted in or consented. Existing templates for class members had to be deleted unless Facebook obtained express consent after a separate disclosure explaining how the templates would be used. Templates belonging to class members inactive for three years also had to be deleted. At the preliminary approval hearing, a Facebook product manager testified that the opt-in default would apply globally. Edelson signed that amended agreement for the plaintiffs and the class alongside the other counsel.

Facebook used its direct access to users for settlement notice. The online or mailed claim form asked for basic account information, and claimants could choose a paper check, Zelle, PayPal, or direct deposit. The court had encouraged consultation with a behavioral specialist about outreach. More than 1.57 million timely claims were submitted, about 22 percent of the settlement class, and the court estimated that each valid claimant would receive at least $345 before later adjustments. There were 109 opt-outs and three objections.

Fees received separate scrutiny. The three class-counsel firms sought $110 million. The court found their 30,103.8 hours reasonable, including 12,423.1 hours recorded by Edelson PC, but concluded that the requested percentage was too large compared with the time spent. It awarded $97.5 million, fifteen percent of the fund, with part held back until the work of administration was complete. The hours reflect firm-wide work; Edelson’s individual time was not separately stated. The Ninth Circuit later affirmed the fee and incentive awards in an unpublished memorandum.

Final approval came in February 2021. The order characterized the settlement as a major consumer result and approved the cash fund, the changed default, and the deletion provisions. It did not enter a verdict that Facebook had violated BIPA, and the settlement agreement contained no admission of liability. The Ninth Circuit’s later memorandum addressed only the objectors’ challenge to fees and incentive awards. Choice of law, standing, and certification were resolved before settlement; factual disputes over the software, consent, conduct, and damages remained unresolved.

Later Developments

Edelson founded Edelson PC and remains its chief executive. The firm lists privacy, emerging technology, artificial intelligence, class and mass actions, public-client work, and complex commercial litigation among his areas of practice. In the Facebook case, he represented Licata, served within the three-firm class-counsel team, and signed the amended settlement agreement for the plaintiffs and the class.

He and Edelson PC partner Amy Hausmann later wrote that a settlement’s announced value matters only if class members receive the money. They called for better notice, simpler claim forms, more payment choices, and greater public discussion of claims rates. “Doing so starts with a willingness to move these private conversations we all have about claims rates fully into the public square,” they wrote. The Facebook administration used direct digital outreach, four payment methods, and a short claim form.

A later Ninth Circuit decision distinguished the Facebook class from a claim involving transient face signatures. In Zellmer v. Meta Platforms, a different plaintiff challenged the same broad face-recognition pipeline on behalf of nonusers. The court held that BIPA can protect people who do not use the service. Meta nevertheless prevailed because the face signatures in that record were transient, could not identify a person by themselves, could not be reverse-engineered, and were deleted within a fraction of a second. Edelson was not counsel in Zellmer. The opinion distinguished the stored user templates alleged in Patel from the temporary signatures before it.

Illinois also amended BIPA in 2024. For damages purposes, repeated collection or disclosure of the same person’s biometric identifier or information by the same method now amounts to a single violation, and an electronic signature can satisfy the statute’s written-release requirement. Those changes postdate the Facebook settlement. The amendments limit repeated damages for the same collection method while preserving the statute’s notice, consent, retention, and destruction requirements.