WASHINGTON D.C. — Today, TechFreedom filed an amicus (friend of the court) brief urging the Supreme Court to review the Ninth Circuit’s August decision in Patel v. Facebook. Back in 2010, Facebook launched “Tag Suggestions,” a feature that identified possible matches with a user’s friends in photos they uploaded, allowing them to more easily “tag” their friends. Class action plaintiffs alleged that Facebook violated Illinois’s Biometric Information Privacy Act (BIPA) of 2008 by failing to obtain the specific form of written consent required by the state law and to maintain the required “retention schedule.” The Ninth Circuit held that class action plaintiffs had “standing” to sue Facebook in federal court even though they never alleged any concrete injury.
TechFreedom President Berin Szóka summarized our brief as follows:
Whether to reverse Patel may be the most important tech-related decision the Supreme Court makes this decade. If Patel stands, it will be much, much easier for trial lawyers to extort massive financial settlements, not just from Big Tech companies but any company that collects or uses covered consumer data — essentially every American company. This tidal wave of consumer class action lawsuits will hinder useful innovation even at the biggest tech companies, but smaller companies and startups will suffer most. There’s just no way they’ll be able to manage the risk of crushing legal liability for minor or technical violations that injure no one.
Article III of the U.S. Constitution allows Congress to create only courts of limited jurisdiction — unlike the plenary jurisdiction of state courts. To gain access to federal court, plaintiffs must demonstrate that they have suffered some concrete harm. The Ninth Circuit’s decision ignores this fundamental tenet of American law by granting standing to anyone who can conjure up a technical violation of any privacy statute, state or federal. Critically, Rule 23 of the Federal Rules of Civil Procedure allows much easier access to federal courts than does Illinois law. Combined with BIPA’s statutory damages of $1000 or $5000 per violation — potentially, per photo — this could mean literally trillions of dollars in court judgments.
Yet even as Patel will greatly magnify the effect of state privacy laws, the decision may, perversely, increase the political incentive of state legislators to enact laws that impose massive liability unmoored from any concrete consumer injury. If the Supreme Court declines to review Patel, it will become even more critical that Congress enact legislation providing for a comprehensive federal law, lest even a single state law become the basis for reshaping the Internet as we know it.
TechFreedom supports Facebook’s petition for a writ of certiorari, but takes a narrower position: we do not question whether state courts could hear such cases or that plaintiffs could bring suit in federal court if they could allege some recognized injury.
Gerry Stegmaier and Mark Quist, attorneys at Reed Smith LLP, served as pro bono counsel on this brief, as they did on another amicus brief TechFreedom filed in September urging the Ninth Circuit to rehear the panel decision now before the Supreme Court.