The typical user of Facebook enjoys staying in touch with friends and family through frequent posts of family gatherings, private travel photos and photos of personal hobbies or activities. Facebook posts may have a brief narrative, but the essence of Facebook’s appeal is the posted photographs. While an individual may not have thought twice about posting personal photos, Facebook found a way to monetize its vast trove of personal photos to feed and perfect its powerful facial recognition software which uses artificial intelligence. Until recently, Facebook gave no notice to users of its utilization and storage of these photos. The unauthorized exploitation of personal photographs to train artificial intelligence tools is violation of Texas law. This practice is the subject of a recent ground-breaking complaint filed by the office of the Texas Attorney General (AG).

In The State of Texas v. Meta Platforms f/k/a Facebook, Cause No. 22-0121, 71st Judicial District, Harrison County, filed Feb. 22, 2022, the AG seeks to defend the rights of an estimated 20.5 million Texans who are registered users of Facebook. The AG alleges violation of a Texas biometric information privacy law first passed in 2001 and amended in 2009. The “Capture or Use of Biometric Identifier Act” (CUBI) is §503.001 of the Texas Business and Commerce Code. While it is unlikely that the Texas legislature was targeting biometric information used to train artificial intelligence software in 2001, the broad terms of the statute, as amended, offers a clear basis for the lawsuit.

Protections in CUBI

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