Attorneys say proposal was thanks to lobbyists hired by Facebook, Google, others.


Yesterday, Illinois Senator Terry Link filed an amendment to the state’s Biometric Information Privacy Act (BIPA) to relax rules on the collection of facial recognition data, and he attached that amendment to an unrelated bill pertaining to unclaimed property. But on Friday morning, the senator’s spokesperson reached out to Ars saying that the bill “had been put on hold,” although he would not comment on the reasons for the decision, nor would he speak to when or if the amendment might be revived. If it passes, the amendment would pull the rug out from under a number of lawsuits filed against Facebook, Google, and Snapchat for using facial recognition in photo tagging.

At first, it seemed that the amendment would be quietly pushed through the legislative process. A law firm representing plaintiffs in the Facebook case suggested that Sen. Link proposed the amendment yesterday and added it to a bill that has been languishing since February so that state representatives would move to quickly pass the amendment before Memorial Day.

But Link’s amendment has drawn concern from privacy advocates. The Center for Democracy and Technology wrote that the piece of legislation was proposed “without time for sufficient public debate, less than a week before the end of a legislative session” in an “undemocratic maneuver that minimizes the potential for public engagement on a vital issue of policy and technology.” The Electronic Privacy Information Center also wrote that the amendment “would undercut legal protections, exempting facial recognition software from the law.” Chris Dore, a partner at the firm representing the Illinois plaintiffs, said that the Illinois attorney general had also come out this morning against Link’s amendment. The attorney general’s office confirmed to Ars that it is opposed to the changes, although it gave no further statement.

The amendment is generating so much attention because of a lawsuit that was filed against Facebook by three Illinois residents who claimed that the social media giant was violating BIPA by scanning faces in uploaded pictures and then suggesting friends to tag. Facebook requested that the lawsuit be moved from Illinois to a California district court, and this request was granted. However, Facebook then filed a motion to dismiss the case, which a California judge denied. Facebook had argued that the three Illinois residents had no grounds to sue because in 2015 the site amended its terms and conditions to stipulate that all cases against Facebook had to be litigated according to California law, which does not have such a stringent biometric privacy provision.

The judge wrote that Facebook had to answer the lawsuit, because it concerned a “fundamental policy of Illinois.” Lawsuits against Google and Snapchat have followed.

The now-on-hold amendment to BIPA would have approved the collection of information from “physical or digital photographs.” The amendment also considered a “scan” of information from photographic media to pertain to “data resulting from an in-person process whereby a part of the body is traversed by a detector or an electronic beam.” No longer would digital photos be protected from a company’s off-site facial recognition scan.

Dore told Ars on the phone that he thinks Facebook and a variety of other Silicon Valley companies have lobbied for this change that would eliminate his firm’s clients’ case against the company. “We’re confident that this is a coalition,” Dore said.

In a comment to Ars before the amendment was put on hold, a Facebook spokesperson noted that Sen. Link sponsored the original BIPA language. The company’s only comment: “We appreciate Sen. Link’s effort to clarify the scope of the law he authored.” Facebook would not comment on whether it had hired a lobbying firm to propose this amendment to Link.