Jul 27, 2020 - Technology

Exclusive: Texas AG probing Facebook over biometric data

A photo illustration of a smartphone with the Facebook logo displayed prominently on it.

Photo illustration: Jakub Porzycki/NurPhoto via Getty Images

Texas is investigating Facebook for possibly running afoul of state laws on the collection of biometric data, according to June documents uncovered by a tech watchdog group.

The big picture: Texas Attorney General Ken Paxton has emerged as a key tech investigator, and going after Facebook for illegally harvesting biometric data may be a fruitful line of inquiry. Facebook users in Illinois secured a major settlement over the issue.

Driving the news: The Texas AG is investigating Facebook for possibly violating its Texas Deceptive Trade Practices — Consumer Protection Act by improperly collecting biometric identifiers, according to the documents, obtained by the Tech Transparency Project through a public records request and shared with Axios Monday.

  • The documents show the Texas AG issuing a civil investigative demand to Facebook, asking for many pages of information related to Patel v. Facebook, the case that led to the settlement in Illinois in February, when Facebook agreed to pay $550 million (recently bumped to $650 million).

Between the lines: The latest documents don't make clear exactly what the Texas AG's office is looking into, but the Illinois case centered on Facebook's use of facial recognition tech to identify people in photos uploaded to the platform and suggest tagging them.

  • That violated Illinois law on biometric privacy, argued the plaintiffs in the case. The settlement still has to be approved by the U.S. District Court in the Northern District of California.

Where it stands: The documents Texas is seeking include discovery materials, responses to requests for interrogatories, the identity of experts retained by Facebook in the matter, unredacted transcripts of depositions, and a copy of all motions and pleadings.

Yes, but: It appears Facebook does not wish to send those materials along. In a June 25 email to the company, the AG's office seeks to schedule a video conference to discuss Facebook's reasoning for why it shouldn't have to produce the requested material.

Of note: According to the documents, a June 12 email from an official in the Texas AG's Consumer Protection Division to a Facebook executive read: "This is obviously a Texas-only inquiry and is separate from the other pending matter."

  • It does not specify what the other pending matter is, but it's possible it's a New York-led multistate antitrust investigation into Facebook, a probe that includes Texas.

Context: Paxton has taken point on a separate multistate antitrust investigation into Google, and Axios recently reported that his office is investigating Apple for potentially deceiving consumers.

What they're saying: A Paxton spokesperson, reached for comment on the documents, shared the office's usual statement that it is "long-standing OAG policy" not to "comment on, confirm or deny any pending or potential investigations."

  • Facebook declined to comment.
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