Last week Meta, the social media company formerly known as Facebook, removed some of its augmented reality effects and applications, such as avatars and filters, from Facebook and Instagram in Illinois.
The decision also affects Meta’s Messenger and Messenger Kids apps as well as Portal, its family of smart video-calling devices. The company, which was embroiled in privacy litigation in Illinois for years over its facial tagging feature, also pulled the features in Texas.
A Meta spokesperson said the augmented reality technology is not facial recognition, but the company was “taking this step to prevent meritless and distracting litigation under laws in these two states based on a mischaracterization of how our features work.”
The company plans to reintroduce the augmented reality features on an opt-in basis. A Meta spokesperson did not offer a timeline for when the features would become available again, saying the new opt-in experiences would roll out “soon.”
“We remain committed to delivering AR experiences that people love, and that a diverse roster of creators use to grow their businesses, without needless friction or confusion,” the company said in a statement.
Here’s what to know about augmented reality and biometric privacy law.
Illinois has what is considered the strictest biometric privacy law in the U.S. Passed in 2008, the Illinois Biometric Information Privacy Act requires prior notification and consent for a private entity to gather and keep an individual’s biometric information.
In Illinois, private citizens can and do sue companies for allegedly breaking the law. Facebook recently paid out a $650 million class-action settlement over its facial tagging feature. Checks for $397 went out to class members earlier this month.
And last month, Google reached a $100 million class-action settlement in a lawsuit that alleged its Google Photos app ran afoul of the state’s law because it sorted faces by similarity without consent. The company did not admit wrongdoing in the settlement, and a final approval hearing is scheduled for September.
“Hundreds and hundreds” of lawsuits under the privacy act have been filed in Illinois, said Matthew Kugler, an associate professor at Northwestern University’s Pritzker School of Law whose research includes biometric privacy issues.
Texas also has a biometric privacy law, which is not as strict as Illinois’ in part because only the state’s attorney general can sue companies for alleged violations, Kugler said. The Texas law also doesn’t require as rigorous affirmative consent as the Illinois law. Texas Attorney General Ken Paxton sued Meta under the law in February over its use of facial recognition technology.
Though some states regulate biometric privacy through their data breach laws, Kugler said, “Illinois and Texas are really in a class by themselves.”
If you’re one of the 1.6 million Illinois Facebook users who filed a claim in the company’s recent class-action suit over facial tagging, you may be wondering if Meta is trying to avoid a similar lawsuit down the line over its filters and other AR features.
“Last time Facebook was sued because it was analyzing your photos to identify the people in them,” Kugler said. “Now, Facebook is concerned it would be sued for analyzing a live video image, figuring out where your facial features are and changing them by putting a pair of sunglasses on you.”
The same legal standard, Illinois’ strict biometric privacy law, is at play here. But whether or not the company’s use of AR features runs afoul of Illinois’ biometric privacy law is unclear, Kugler said.
Meta appears to be operating under an abundance of caution. The company made a “sensible” decision to pull the features, Kugler said.
“They’re being careful,” he said. “If sued on this, they might very well win. There are lots of good reasons why they should win, but they also might not, and it would take years.”
The first wave of lawsuits under Illinois’ biometric privacy law tended to focus on fingerprint scanner and photo tagging technology, Kugler said.
“Now that those wells are running dry, people are looking in other places for this kind of violation,” he said, including within the realm of augmented reality.
The day after Meta pulled some of its AR features in Illinois and Texas, Snap Inc., Snapchat’s parent company, was sued in federal court under Illinois’ biometric privacy act over its use of filters.
Also last week, facial recognition startup Clearview AI agreed to a settlement in another biometric privacy lawsuit brought by the American Civil Liberties Union and other groups. Under the settlement, which still must be approved by a federal judge, the company would be permanently banned from selling access to its face database to private companies in the U.S. Clearview did not admit wrongdoing in the case.
Associated Press contributed.