EAST ST. LOUIS - Facebook provider Meta Platforms challenged the Illinois Biometric Information Privacy Act on constitutional grounds at U.S. district court on Nov. 14.
Meta raised the issue as an affirmative defense against a complaint that Facebook Messenger and Messenger Kids improperly collected and stored facial features.
Meta counsel Matt Provance of New York City claimed any award of statutory damages would constitute an unconstitutional penalty on the facts of the case.
The statute provides penalties of $1,000 per violation and $5,000 per reckless violation.
Provance claimed it would be grossly excessive given that plaintiffs and others in a potential class action suffered no actual injuries.
He claimed the damages violate due process, equal protection and other substantive and procedural safeguards afforded by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and the Illinois Constitution.
He also claimed the statute is unconstitutionally vague under both constitutions.
Rebecca Hartman and Joseph Turner of St. Clair County and a minor child of each sued Meta in St. Clair County circuit court last year.
Their counsel Ryan Keane of St. Louis County claimed Meta gathered private data through augmented reality features without consent.
He proposed to pursue a class action for every Messenger or Messenger Kids user in Illinois from 2018 to the date of a judgment.
He claimed a class would include thousands or millions of people.
Meta removed the complaint to district court, claiming the amount in controversy exceeded a $5 million limit on class actions in state courts.
Meta moved to dismiss the complaint, claiming the national Children’s Online Privacy Protection Act preempted the Illinois statute.
Chief District Judge Nancy Rosenstengel denied the motion in September.
Provance admitted in answering the complaint that Messenger Kids is available for parents to download and set up for their children in some jurisdictions outside the U.S.
He admitted tens of millions of minors across the world can use Messenger Kids.
He averred that the use of augmented reality filters and effects available on Messenger and Messenger Kids is a voluntary and optional experience.
He claimed Meta’s good faith and absence of negligent or reckless conduct barred the claims in whole or in part.
He claimed to the extent the statute applies to Meta, it relied in good faith on a reasonable interpretation of statutory language.
He claimed Meta believed it didn’t capture, collect, possess, retain, disseminate, or otherwise use biometric identifiers or information of users.
He claimed plaintiffs agreed to be bound by Meta’s terms of service as a condition of using Messenger and Messenger Kids.
He claimed they agreed that California law would govern their claims.
Rosenstengel has set bench trial in December 2026.