A Social Media Influencer’s Nightmare – Fun Filters On Instagram And Facebook Disabled In Illinois And Texas – Privacy Protection | #socialmedia



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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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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