Frederick William Gullen, on behalf of himself and all others similarly situated v. Facebook, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDERICK WILLIAM GULLEN, on
behalf of himself and all others similarly
situated,
Plaintiff-Appellant,
v.
FACEBOOK, INC.,
Defendant-Appellee.
No. 18-15785
D.C. No. 3:16-cv-00937-JD
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Submitted June 12, 2019**
San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.
FILED
JUN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.

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Frederick Gullen appeals the district court’s grant of summary judgment to
Facebook, Inc. on his claim that Facebook violated the Illinois Biometric
Information Privacy Act (BIPA), 740 ICLS 14/1 et seq. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
No reasonable jury could conclude that Facebook subjected the photo
uploaded to the Glenview Patch organizational Facebook page (which is the only
photo at issue in this appeal) to facial recognition. The record contains
declarations from Facebook employees as well as internal emails asserting that at
the time the Glenview Patch photo was uploaded, facial recognition was turned off
for organizational pages. The record also includes evidence specific to the
Glenview Patch photo at issue, showing that Facebook did not subject it to facial
recognition. Although Gullen points to emails and testimony indicating that all
photos uploaded by individual Facebook users were subject to facial recognition,
this evidence does not give rise to a reasonable inference that the particular
Glenview Patch photo at issue, which was uploaded to an organizational Facebook
page rather than a user page, was subject to facial recognition. Accordingly, the
district court did not err in dismissing Gullen’s claim that Facebook violated BIPA.
See 740 ICLS §§ 15, 20.
AFFIRMED.
2

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