                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 14 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FREDERICK WILLIAM GULLEN, on                     No.   18-15785
behalf of himself and all others similarly
situated,                                        D.C. No. 3:16-cv-00937-JD

              Plaintiff-Appellant,
                                                 MEMORANDUM*
 v.

FACEBOOK, INC.,

              Defendant-Appellee.


                    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.




      *
             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.
      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.


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