This week Meta, formerly known as Facebook, announced that it has disabled augmented reality effects, including filters and avatars, for its users in Texas and Illinois, citing state facial recognition laws.  Meta says that users in those states will see a “temporarily unavailable” message when accessing such features across Facebook, Messenger, Instagram, and Portal.  This decision comes at a time when the Illinois Biometric Information Privacy Act (BIPA) continues to wreak havoc on Illinois businesses, and just months after Texas Attorney General Ken Patton filed a lawsuit against Meta claiming the company misused facial recognition technology.  Denying any wrongdoing, Meta released a statement justifying the decision as a measure to avoid “meritless and distracting litigation”:

The technology we use to power augmented reality effects like avatars and filters is not facial recognition or any technology covered by the Texas and Illinois laws, and is not used to identify anyone.  Nevertheless, we are taking this step to prevent meritless and distracting litigation under laws in these two states based on a mischaracterization of how our features work. 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.

Enacted in 2008, BIPA continues to be the most consumer-friendly biometric privacy law in the country.  Unlike its counterparts in Texas and Washington, BIPA is currently the only biometric privacy law offering a private right of action with attorneys’ fees, making it very lucrative and attractive to the plaintiffs’ bar.  Through continuing technological advancements and increased uses of biometric identifiers, BIPA lawsuits have proliferated with increasing speed.  For example, from 2008 to 2018, there were only 163 BIPA class action lawsuits filed.  In 2019 alone, there were well over 300 BIPA class action lawsuits filed—doubling the prior decade.  To date, there have been over 1,000 BIPA class action lawsuits filed across the United States.

Notably, Washington was left off of Meta’s list of “no-filter” states, presumably because its biometric privacy law can only be enforced by the attorney general and the Washington attorney general has yet to actively enforce the statute.  In turn, despite not providing a private right of action, Texas was included in Meta’s decision, likely due to Paxton’s hot pursuit of protecting his residents’ biometric information in accordance with the state law.

We are now beginning to see the (likely) unintended consequences of the current biometric privacy laws and it remains to be seen how much continued effect these laws will have on commerce.  To that end, we can anticipate further disruptions of commerce with the continuing introduction of biometric privacy laws in state legislatures throughout the United States.