Texas v. Meta

Just under a month ago, the State of Texas and Facebook (now known as “Meta”) entered into an agreed final judgment which affects Meta’s ability to collect biometric data from its customers. If you didn’t know, in 2022, Texas filed a lawsuit against Meta for bulk collection of biometric data, from photos and video, by using a now discontinued feature called “Tag Suggestions”, which would anticipate or suggest to the user the identity of other individuals in the photograph.  This action would violate Texas’ 2009 biometric privacy law. Meta previously dealt with similar claims in Illinois in 2020.

The statute in question, §503, provides that a person may not capture biometric identifier of an individual for commercial purposes unless first informing the individual and receiving consent to capture the biometric identifier.  Once the information is obtained, it may not be distributed to anyone else unless there is consent for distribution, required by law, or requested by law enforcement. Meta, however, was unable to explain the reason for the function’s existence or whether and how it obtained the requisite consent.

Of course, there is the carve out contained within the final order, specifically, subsection G.  Contained therein is Meta’s ability to extract biometric data from citizens of Texas, provided they first seek the consent of Texas’ Office of Attorney General. The state is then given the option to allow the conduct, request more information, or deny Meta’s proposal.  Most interesting is the State’s obligation upon itself should they seek to deny – requiring them to specify their objections to Meta’s conduct and specifically within the parameters of Texas’ biometric statute. The exceptions continue, further binding the state’s executive function, including prerequisites for Texas’ ability to bring civil enforcement actions.

Unfortunately, it appears that Texas, almost willingly, has subjected itself to federal actions through the commerce clause.   Whereas previously, Meta would conduct itself, be fined, then negotiate with the respective states – conceivably, it now has more evidence of the state’s intent to challenge in federal courts – a venue more favorable to the information giant. Texas’ interests and rationale for violation of the biometrics statute will have been previously disclosed to Meta and now the basis for challenge.

Thus, two things can be gleaned from this settlement. First, biometric data can be purchased for a fee in Texas; and that Meta values the data greater than fines generated by virtue of resulting lawsuits throughout the country.