Facial recognition software is nothing new, and people have been using their faces to unlock their phones for many years now. However, the software has numerous applications that have not yet been fully explored – and these new ventures are proving somewhat controversial. Numerous lawsuits involving facial recognition software have emerged within the past few weeks, and they span numerous industries. Why is facial recognition software leading to so much litigation, and should tech companies be wary of these lawsuits in the future?

Man Sues for Wrongful Arrest After Facial Recognition Software Mistake

Perhaps the most notable recent lawsuit regarding facial recognition software involves a wrongful arrest. Apparently, Macy’s and Sunglass Hut used facial recognition software to identify the defendant. However, the software obviously made some kind of error. Although he only spent a few months incarcerated, this was enough time to experience sexual assault and physical violence. It is worth noting that this is the seventh time someone has been wrongfully arrested on the basis of facial recognition software in the United States. 

Google Accused of Accessing Facial Biometric Data Without Permission

On January 16, 2024, it was reported that a Canadian resident was once again attempting to sue Google in the British Columbia Supreme Court for collecting and storing biometric facial data without permission. The plaintiff had previously tried and failed to certify a class action against the tech company, which involved the “automatic upload” of his photos to the Google Photos app. The app then apparently extracted and used his biometric identifiers using automatic facial recognition software. He claims that his family was targeted, as well, since they were also in the images.

Google responded by claiming that its “face grouping” feature only serves to create a “face template” to categorize and sort photos in an automatic fashion. Google also points out that the resulting categories are private to the user’s account, and the data is not shared. Finally, the tech company reminds users that they can opt-out at any time. Initially, a judge dismissed the plaintiff’s claims as “vague and speculative.” 

However, this ruling was reversed in an appellate court – and the lawsuit now has the potential to advance. Specifically, the appellate judge stated: 

“Whether the facial biometric data collected from class members was used, exclusively or otherwise, for the purpose of the face grouping function is, as the appellant argues, largely irrelevant to the viability of the pleaded causes of action.”

Zuckerberg Set for Deposition in Texas Over Unlawful Use of Biometric Facial Data

Also on January 16, 2024, it was reported that Mark Zuckerberg had been deposed in a Texas lawsuit involving Meta’s alleged use of facial biometric data. The State of Texas has strict restrictions against the use of biometric data, and its privacy laws may prove problematic for the tech platform previously known as Facebook. 

The Attorney General in Texas initially filed the lawsuit back in 2022, seeking billions in damages for what he says was the “unlawful capture” of biometric identifiers. None of these Texas residents consented to having their biometric data captured, according to the AG. The lawsuit argues that Meta not only captured this information but also shared it with other third parties. Even after being ordered to delete the data, Meta allegedly stalled. This may have been a violation of the Business and Commerce Code under the Deceptive Practices Act in Texas. 

It is worth pointing out that a very similar lawsuit was settled back in 2020 in Illinois, with Meta providing the State with $650 million in penalties. The company began using these techniques all the way back in 2010 – illustrating just how entrenched this technology has become across the software world. However, Meta seems to have ceased these activities in 2021 after facing pressure from numerous jurisdictions. 

Judge Triggers Facial Recognition Alarm After Attempting to Enter Theater

A retired judge inadvertently triggered an alarm system after attempting to enter Madison Square Garden Theater – and apparently, this automated security software identified the judge’s facial biometric data. It was no error – and Justice Barry Kamins was prohibited from entering the premises due to his alleged involvement in a lawsuit against the theater. This is consistent with MSG Theater’s policy that bars attorneys from entering if they are engaged in active litigation against the company. 

In his defense, the judge stated that he was not even party to the lawsuit and that he had no idea who the client suing the theater even was. He is, however, connected with a law firm that is pursuing some kind of unspecified litigation against MSG. As a result of this incident, the judge has decided to join a lawsuit against MSG Entertainment. 

Numerous others have complained about the facial recognition software at the venue, claiming that it violates their civil rights. The judge states that he became embarrassed and somewhat humiliated after setting off the alarm – pointing out that his eight-year-old grandson might see him as a “bad person” because of the debacle. Other major celebrities have been “treated like criminals” after the facial recognition software alerted security personnel of their presence. These individuals were escorted out of the area in front of thousands. The conclusion of this lawsuit could answer very important questions about how facial recognition software impedes civil rights – if at all. 

Find an Experienced Technology Lawyer

If your organization is facing legal issues related to the use of facial recognition software, consider consulting with a technology lawyer for further guidance. As numerous recent lawsuits have demonstrated, this technology can be highly controversial for a number of reasons. Although the software certainly has its fair share of uses, it can also raise a plethora of legal issues. Whether you are starting a new app or you’re trying to update your security systems, it may be worth having a conversation about the legal implications before making any major decisions. Reach out to John P. O’Brien, Technology Lawyer, for further guidance.