The Cook County Circuit Court in Illinois denied Clearview AI’s motion to dismiss an ACLU privacy lawsuit on Friday. Clearview AI (“Clearview”) is an American facial recognition company founded in 2017. The company sells access to over three billion indexed images to law enforcement and commercial organizations. Access allows for individuals to match provided photographs with others found online and find identifying information about individuals in the picture.
Plaintiffs, the ACLU joined by four other organizations, allege that Clearview has violated the Illinois Biometric Information and Privacy Act (BIPA). BIPA requires private entities to inform individuals who have their biometric data collected. Moreover, BIPA requires “written release executed by the subject of the biometric information” as well as information regarding storage, purpose, and length of the collection to be furnished to that subject. Plaintiffs seek an order requiring Clearview to destroy the collected information. They also seek Clearview’s future compliance with BIPA, as well as attorneys’ fees and costs.
Clearview sought a motion to dismiss, making a series of procedural arguments alleging that the company is not subject to jurisdiction in Illinois. Additionally, Clearview argued that the extraterritoriality doctrine, the dormant commerce clause and the nature of the collection prevent the application of BIPA. Lastly, Clearview argued that BIPA is unconstitutional under the First Amendment and the Illinois Constitution.
Applying a four-part intermediate scrutiny test, the Judge Pamela Meyerson rejected Clearview’s First Amendment argument stating that BIPA “furthers an important governmental interest” in preventing the unauthorized disclosure of biometric information out of concern for “public welfare, security, and safety.” The court added:
This governmental interest is unrelated to the suppression of free expression. BIPA proscribes non-consensual face printing not for what it expresses, but for the risks it poses to the subject’s privacy and security…the incidental restrictions on Clearview’s First Amendment freedoms are no greater than necessary to further the governmental interest of protecting citizens’ privacy and security. BIPA does not protect Clearview from collecting or republishing publicly-available photographs or expressing an opinion about who is pictured in them. Nor does BIPA prohibit all use of faceprints. Instead, it requires Clearview to first provide notice and receive consent from the Illinois individuals involved.
Judge Meyerson also rejected Clearview’s argument that BIPA’s protections do not cover faceprints and stated that the fact that a faceprint was made from a photo-scan as opposed to the scan of a live person makes no difference. The court also rejected all the remaining arguments and denied Clearview’s motion to dismiss. The failed motion is a blow to Clearview, which will now have litigate the issues on merit.
