UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CLAYTON P. ZELLMER, on behalf No. 22-16925 of himself and all others similarly situated, D.C. No. 3:18-cv-01880-JD Plaintiff-Appellant,

v. OPINION META PLATFORMS, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Submitted February 7, 2024 San Francisco, California

Filed June 17, 2024

Before: Ryan D. Nelson, Danielle J. Forrest, and Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge R. Nelson 2 ZELLMER V. META PLATFORMS, INC.

SUMMARY*

Privacy / Standing

The panel affirmed the district court’s summary judgment in favor of Facebook—now Meta Platforms, Inc.—on Clayton Zellmer’s claim alleging a violation of the Illinois Biometric Information Privacy Act (BIPA) when Facebook collected or captured his biometric identifiers when it created what Facebook called a “face signature” from uploaded photos; and affirmed the district court’s dismissal for lack of standing of Zellmer’s claim that Facebook violated BIPA when it failed to publish a written policy establishing its retention schedule for collected biometric data. Zellmer never used Facebook, and he alleged BIPA violations after his friends uploaded photographs of him to Facebook. The panel affirmed on different grounds the district court’s summary judgment in favor of Meta on Zellmer’s claim under Section 15(b) of BIPA. The district court’s decision turned on the practical impossibility of Meta’s complying with BIPA if it had to obtain consent from everyone whose photo was uploaded to Facebook before it could employ Tag Suggestions. Because the plain text of BIPA applies to everyone whose biometric identifiers or information was held by Facebook, this conclusion was wrong. Having rejected the district court’s reasons for granting summary judgment, the panel turned to whether * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ZELLMER V. META PLATFORMS, INC. 3

there was a material dispute of fact as to whether Meta violated BIPA’s plain terms. On the record, there was no dispute that Facebook made a face signature of Zellmer from photos that his friends uploaded. Guided by BIPA’s statutory text, the panel concluded face signatures cannot identify and therefore are not biometric identifiers or information as defined by BIPA. The panel affirmed the district court’s dismissal of Zellmer’s claim under Section 15(a) of BIPA for lack of Article III standing. Zellmer alleged that Meta lacked written, publicly available policies identifying its retention schedules for permanently destroying any biometric identifiers or information on non-users like him in its possession. The panel held that Zellmer never explained how he or any of the proposed class members were harmed by this general duty in a “concrete and particularized” way. Nor could he have, given the panel’s conclusion that, on the record, face signatures cannot identify and therefore are not biometric identifiers or information as defined by BIPA.

COUNSEL John Carey (argued), Carey Rodriguez LLP, Miami, Florida; David P. Milian, The Milian Legal Group, Miami, Florida; Albert Y. Chang, Bottini & Bottini Inc., La Jolla, California; for Plaintiff-Appellant. Lauren R. Goldman (argued), Michael Brandon, and Lefteri J. Christos, Gibson Dunn & Crutcher LLP, New York, New York; Michael G. Rhodes and Whitty Somvichian, Cooley LLP, San Francisco, California; John Nadolenco, Mayer 4 ZELLMER