Apple's "insistence that it cannot unscramble and decipher the data," a federal judge in Illinois wrote on September 30, "is immaterial to its 'control' of the data."
Which data? For each face it finds, the Photos app on an iPhone, iPad or Mac computes a list of 128 numbers, and since July 2024 some devices have synced those lists to Apple's servers. Apple's lawyers call what the plaintiffs label a faceprint "just a string of numbers, not a scan of face geometry that can be used to recreate a face." As for the synced copies, they wrote, "Apple has no ability to break the end-to-end encryption, and hence no ability to access the underlying information."
U.S. District Judge Nancy J. Rosenstengel answered the encryption argument with the sentence above, and with an image: a collector holding hieroglyphs he can't read, who "undoubtedly exercises 'control' over the hieroglyphic text regardless of whether he (or anyone else) can understand it."
I can't tell you that Apple controls the data, because the judge hasn't ruled that it does. She wrote that Apple "undoubtedly could" rewrite, publish, decrypt or delete the synced faceprints, that it "likely" controls them and "may also" control the copies on people's devices, and then she left the question open.
To be clear, Apple hasn't been found liable for anything. But if you keep photos on Apple devices, this case is about your library: in Apple's own words, Photos "recognizes the faces of people and pets in your photos and groups them together." If you're an Illinois citizen, you may already be in the class.
A face, in 128 numbers
So what does Photos do with a face? On the machinery, the two sides mostly agree. (Yes, it's technical; so are the questions a jury is set to answer.)
Photos comes preinstalled on iPhones, iPads, Macs and Apple TVs, and "it cannot be uninstalled by users." One neural network finds and crops the faces in your pictures; a second turns each crop into "a 128-dimensional vector," a list "made up of 128 decimal-point numbers." Some Apple employees and numerous internal Apple documents, like the plaintiffs, call these faceprints. They aren't measurements of distances between points on a face, the judge noted, but "they can be used to distinguish between faces."
Photos clusters similar faceprints into the People album and "intelligently suggests names from the users' Contacts." By the plaintiffs' account, as the opinion recounts it, Photos will also ask, "Is this a photo of you?" (Apple disputes that the app uses "identity information" to infer who the user is.)
Without iCloud Photos, "faceprints remain on the device." But it's undisputed that with a July 2024 update, "Apple took faceprints from users' devices and began syncing them to its cloud-based servers" for iCloud Photos users on iOS 17.6 or later with at least 10 gigabytes of storage and more than 5,000 photos or videos. Apple says that data is end-to-end encrypted, and the judge noted that the plaintiffs hadn't adequately supported their claim otherwise. (Face crops and labels are uploaded "in an end-to-end encrypted format," the opinion says, and under the "Standard Data Protection" setting, "Apple retains access to the encryption keys.")
Why does it matter? Because Illinois's Biometric Information Privacy Act, BIPA, covers a "scan of hand or face geometry" (photographs are excluded) and requires, among other things, "a written release" before collection and a published retention policy. There's no dispute that Apple did neither for this feature, the judge wrote. Apple says it didn't have to, because the feature "does not in any way involve biometrics."
The parts she decided, and the parts she didn't
So what did the ruling decide? Apple won on face crops — the cropped images themselves — which "are not biometric identifiers or biometric information," and a subclass built on them was decertified (its members stay in the main class).
Everything else Apple asked for, she denied. Whether the People album itself identifies anyone is beside the point; what matters is whether the faceprint "is capable of identifying a person." Nor is encryption a shield: BIPA has "no explicit defense or carveout" for it, and Apple conceded at oral argument, by her account, that it could "decide one day to no longer protect the data with end-to-end encryption."
What did she leave open? Is a faceprint a scan of face geometry? She wrote that "a reasonable jury could find" that Apple's technology incorporates such scans, or, crediting Apple's expert, "could conclude that Apple's CNN does not scan face geometry." (A convolutional neural network, not the cable channel.) Can a faceprint identify someone? Apple's own patent applications, as she quotes them, describe one as a vector that "uniquely identifies a face image but does not associate a name with the face," synced faceprints are tied to iCloud accounts, and for anyone who adds identifying details to an album, faceprints are "without a doubt, connected to their identity." Yet none of the named plaintiffs labeled an album with more than a first name, and "a jury could find that the faceprints created by Apple's technology are not capable of identifying a person."
Control stays open too. For the on-device class, the plaintiffs conceded that whether Apple can access those faceprints is a question of fact, so their bid for an early win there failed; for the synced subclass, she rejected Apple's motion and reserved ruling on the plaintiffs'.
A jury trial is presumptively set for April 2027. In July, the Seventh Circuit refused to hear Apple's appeal of the class certification, and the plaintiffs' lawyer, Andrew Schlichter, told TechRepublic, "We look forward to the opportunity to prove the case at trial." On October 20, Apple asked the judge to let it appeal now or to reconsider, and to pause the case; in MLex's summary, Apple said the question has sweeping implications for the use of end-to-end encryption. As of October 30, 2026, neither request has been decided.
Who is in the class, and what it could be worth
Who is in? "Every Illinois citizen whose Apple Device put a photograph of that citizen into a People album at any time between September 13, 2016, and the present." A friend whose face fills your library but whose own Apple device never put them in a People album isn't. The plaintiffs' evidence put the class at "approximately 6.5 million members"; Apple disputes that.
If Apple is found liable, "each class member would be eligible for only one recovery of either $1,000 or $5,000," the first for a negligent violation, the second for an intentional or reckless one. Only one, because of a 2024 amendment that the Seventh Circuit held in April "applies retroactively to cases pending at the time it was enacted." The same court said damages "appear to be discretionary under BIPA." (That's a federal court reading Illinois law; as far as I could find, no Illinois appeals court has ruled on the question.)
Illinois has been here before. Under Facebook's $650 million settlement, approved in February 2021, the company agreed to set its "Face Recognition" default to "off." Google's $100 million settlement over Google Photos, approved in September 2022, covered "all Illinois residents who appeared in a photograph" in the service. Apple, so far, is litigating.
Isn't keeping it on the phone the privacy-friendly design?
On design, Apple has a real point. Its privacy page says Photos uses "on-device analysis to recognize the faces of people in photos" and that "Apple does not access your photos or videos"; its researchers describe the algorithms "running privately on-device."
The newest appellate law helps Apple too. In August, the Seventh Circuit — whose rulings bind this court — upheld the dismissal of a suit over Samsung's Gallery app, which groups photos of the same person, because the complaint failed to plausibly allege that Samsung "gained or exerted control over the data." Software whose face templates "remain parked within the confines of the user's own personal device," it wrote, strays "too far afield from the statute's heartland." Lawyers at Mayer Brown, in an analysis the Washington Legal Foundation republished, said the ruling "cuts against the trend of expansive readings" of BIPA.
Meta won a similar fight in 2024. The Ninth Circuit held that the law means "non-users are protected," then ruled for Meta anyway, finding "no material dispute of fact about whether face signatures can identify a person." On that record, Facebook's couldn't. And 9to5Mac's Ben Lovejoy, writing in August before this ruling, said the court "fundamentally misunderstands how the feature works."
So far, so good for Apple. But the judge's reply to the Samsung ruling was that it "is not the silver bullet that Apple believes it to be." Samsung's phones ran Google's Android, whereas "Apple has control over its software at all times," and Apple chose to sync faceprints to its own servers. Even the Mayer Brown lawyers advised companies to consider designs in which "no such data is transmitted to company or third-party servers, and the company retains no ability to access, modify, or use it." Apple's sync is exactly what that advice steers away from.
In short, the judge's point is narrow and hard to wave away: Apple writes the software, chose the sync, and, as she described the record, "there is no ability for users to turn off the feature." Whether that adds up to control under BIPA is still open.
Canada already argued over 128 numbers, at the mall
Has anyone answered the 128-numbers question before? Canada tried.
In 2018, Cadillac Fairview had cameras in the wayfinding kiosks of its Canadian malls, running software that turned shoppers' faces into numbers, and it told investigators the data could not be used to identify anyone.
In October 2020, Canada's federal, Alberta and British Columbia privacy commissioners disagreed. In their view, creating "a unique numerical representation of a particular face" was a collection of biometric information, because it could be used "to distinguish between different individuals," even though they found no evidence that the company had used it to identify anyone. They counted "5,061,324 numerical representations of faces, from an unknown number of individuals."
The company "expressly disagreed," had already switched the software off and deleted the data, and refused to commit to asking for express opt-in consent if it ever brought the technology back. No fine followed, because Canada's federal commissioner "is not empowered to impose fines or award damages." Michael McEvoy, then B.C.'s commissioner, called that "an incredible shortcoming of Canadian law," CBC reported. The company's spokesperson told CBC the representations "are not faces" but "sequences of numbers." Sound familiar?
Then came a proposed class action, and the answer flipped: in 2025, a B.C. judge admitted the commissioners' report "but not for the truth of its contents," noted that each record held "a 128-number face embedding" (the same length as Apple's vectors), accepted a defense expert's opinion that no one could be identified from the data, and refused to certify the class. In August 2026, B.C.'s Court of Appeal agreed there was "no basis in fact for the proposition that facial images or biometric and personal information was recorded" — though the appeal was doomed anyway by a ruling the plaintiffs never challenged. Both were rulings on whether the case could proceed as a class action; neither was a trial.
One difference matters: the mall's numbers weren't tied to anyone's account or name, while Apple's synced faceprints sit in iCloud accounts. Still, the same kind of numbers got three answers. Biometric, said Canada's regulators, who couldn't fine anyone. No basis in fact, said its courts, at the certification stage. And in Illinois, a question for a jury, with damages possible.
The overnight update
What follows is a scenario. Every piece of it exists today; the combination doesn't, and nothing suggests Apple plans it.
A few years from now, past midnight, millions of phones are charging on nightstands — the hour when, Apple's researchers wrote, the clustering "runs periodically, typically overnight during device charging." An update arrives. Which kind? Apple's call. As a former Apple engineer testified, "it's software. You could write any software that is enabled on iOS and [it] could do what you are asking to be done."
Maybe it's a good update, one that asks for written permission before the numbers are made. Maybe it ships everywhere but Illinois, the way Google's familiar-face detection for Nest cameras "is not available for cameras based in Illinois." Or maybe nothing on the phone changes and the math does: as the judge put it, "technological progress may make today's encryption flimsy," and researchers who rebuilt face images from one system's deep templates, in a lab study, warned of "the need to secure deep templates in face recognition systems." (Apple's expert calls rebuilding a face from a faceprint unrealistic, if not impossible, without intimate knowledge of its model, which isn't public.)
And then there's everyone in the frame who never owned the phone. In this case, only people whose own Apple device sorted them are in the class.
In every version, the question under the judge's ruling is the same: who gets to push the update?
Is the right to sue the problem or the point?
Beyond Apple, the argument is about BIPA's most unusual feature: any person "aggrieved by a violation" can sue.
Business and free-market groups want that gone or tamed. The U.S. Chamber's Institute for Legal Reform says the law "has led to more litigation abuse than consumer protection." An article from the Illinois Policy Institute, a free-market think tank, says repealing the law would let businesses adopt data technologies "without the constant threat of a lawsuit." Chamber of Progress, a tech-industry-backed group, found that in eight BIPA settlements involving alleged harm to consumers, plaintiffs' lawyers averaged "$11.5 million per firm per case" while individuals averaged "$506 per case" (before the 2024 amendment).
Lawyers at Ashurst Perkins Coie wrote in October that "the most reliable way to avoid BIPA exposure is to provide the required notice and obtain written consent before collection, as well as maintain a publicly available written retention and destruction policy."
On the other side, the ACLU of Illinois, which led the initiative that became BIPA in 2008, says "A person's biometric information belongs to them, and only them." And the privacy-law scholar Woodrow Hartzog writes that, thanks to its private cause of action, BIPA has become "the key for holding companies that use biometric systems accountable."
Read the law firm's advice next to the ACLU's line, and they end up in the same place: ask first.
What does this mean for you?
Read the class definition. The main class is Illinois citizens whose own Apple device put their photo into a People album since September 13, 2016. Friends who appear only in other people's libraries aren't in it.
There's nothing to file yet. No settlement, no claim form, no money. As of October 30, 2026, no class notice has been approved; the plaintiffs have proposed email notice, a website and a toll-free number, and Apple opposes sending notice now. Their proposed notice lists "the deadline for submitting any exclusion request," your opt-out date. Watch for it.
What you can switch off. You can turn off iCloud Photos on a device (tap iCloud, then Photos, then deselect "Sync this [Device]"); that stops the syncing while the on-device recognition keeps running, and no Apple page says it deletes faceprints already synced. Advanced Data Protection, an optional setting, makes Photos end-to-end encrypted, with the keys only on your devices, though Apple then can't help you recover that data, and Shared Albums aren't covered. In the People album you can hide a person or stop featuring them.
What you can't. As of October 30, 2026, Apple's privacy and help pages describe no switch that stops Photos from recognizing faces (the Enhanced Visual Search switch is for another feature). The court, describing the record at summary judgment, said users have no way to turn the feature off.
If you use Google Photos, you can turn Face Groups off, which deletes the "Face models used to create those face groups." Google's 2022 settlement required it to tell Illinois users how to "disable the feature and permanently delete" those models and to publish a retention policy.
If you've never used an Apple device and your face lives in other people's libraries, Illinois law protects you as a non-user, by the Ninth Circuit's reading, but this case's class doesn't include you.
In Illinois, weigh in on HB 3667, which would, among other changes, repeal the right to sue under BIPA. As of October 30, 2026, it sits in the House Rules Committee and dies when the new General Assembly convenes on January 13, 2027, unless it moves first. Tell your state representative what you think.
The lesson, as I see it
Apple did much of what privacy-minded design asks for: the analysis runs on the device, the synced copies are encrypted, and Apple says it never looks. That counts for something, and it may yet count with a jury.
But encryption answers only one question — who can read the data. Illinois asks two more: who decides what happens to it, and whether anyone asked you first. The judge's collector can't read a line of his hieroglyphs; he still decides whether they stay in the case.
My vote? Put the question on the screen. Photos already asks, by the plaintiffs' account, "Is this a photo of you?" A company that can ask that can ask first, before the numbers exist, and say how long it keeps them.
Whether 128 numbers amount to your face is now a question for a jury. Whether you get asked before your phone computes them shouldn't need one.
How many people in your photo library live in Illinois? Share this with them: any with an iPhone may be in this class and not know it.