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. 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. That stored template became the biometric object at issue.

BIPA’s Notice, Consent, and Retention Rules

Illinois’s Biometric Information Privacy Act 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 biometric identifiers or 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 the required notice, consent, retention policy, or destruction guidelines.

Edelson’s team pursued a class defined as Facebook users located in Illinois for whom the company created and stored a face template after June 7, 2011. The district court certified that definition, tying membership to Facebook’s own template records and connecting the class to the same collection, notice, consent, retention, and destruction practices.

Choice of Law, Standing, and Certification

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 because BIPA protected a privacy interest Illinois regarded as fundamental.

Facebook also argued that a statutory violation without additional injury did not belong in federal court. The district court held that creating 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 affirmed federal standing and class certification. The Supreme Court later denied Facebook’s petition for review, leaving the certified BIPA class in place.

A Trial-Ready Record and Stronger Terms

Trial preparation produced a technical record addressing how Facebook’s software aligned faces, generated signatures, and compared them with stored templates. Plaintiffs relied on technical materials describing alignment around the eyes, nose, and mouth and on expert analysis of facial landmarks.

Negotiations shortly before trial increased the proposed cash fund by $100 million, narrowed the release, improved notice, and added product changes. The amended agreement created a $650 million non-reversionary common fund.

Facebook was required 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 their use. Templates belonging to class members inactive for three years also had to be deleted.

During approval, a Facebook product manager confirmed that the opt-in default would apply globally. Edelson signed the amended agreement for the plaintiffs and the class.

Notice, Claims, and Payment

Facebook used its direct access to users for settlement notice. The online and mailed claim forms requested basic account information. Claimants could choose a paper check, Zelle, PayPal, or direct deposit.

More than 1.57 million timely claims were submitted. The court estimated that each valid claimant would receive at least $345 before later adjustments.

Final approval came in February 2021. The approved structure paired the $650 million fund and classwide payment process with an opt-in default, separate disclosure, and template-deletion requirements.

Leadership from Certification Through Distribution

Edelson founded Edelson PC and remains its chief executive. In the Facebook litigation, he represented Licata, directed his firm’s class-counsel work, participated in appellate strategy, and signed the amended settlement agreement. His role spanned certification, Supreme Court review, trial preparation, stronger settlement terms, final approval, and distribution.

The certified claim translated an internal product state into a legal sequence: disclose the collection, explain its purpose and duration, obtain permission, retain information under a stated policy, and destroy it on schedule. The settlement carried that sequence into product terms requiring opt-in consent, separate disclosure, and deletion when consent or continued activity was absent.

The administration processed more than 1.57 million timely claims through direct notice, streamlined claim forms, validation, and multiple payment methods. Those procedures connected the approved fund to individual payments for the people whose stored templates were at issue.

Edelson and firm partner Amy Hausmann later wrote that an announced settlement value matters only if class members receive the money. They called for improved notice, simpler claims, more payment choices, and public discussion of claims rates. The Facebook administration used direct digital outreach, a short claim form, and four payment methods.