Litigation Update: Software Developer Clearview AI Asks Illinois Judge to Dismiss MDL Claims

by | Jun 1, 2021

At a hearing held May 25 in the U.S. District Court for the Northern District of Illinois, the facial recognition developer Clearview AI asked Judge Sharon Johnson Coleman to dismiss the consolidated complaint, arguing that its collection and dissemination of data is protected under both the First Amendment and the Illinois Constitution. Clearview maintains a searchable database of biometric data that it collects from publicly available photographs; plaintiffs however allege that Clearview unlawfully profited from these images, using a technique to “scrape” internet photos in an effort to collect biometric data that it in turn sells to law enforcement agencies and for-profit companies, among others.

In response, Clearview maintains that the plaintiffs “can neither survive the strict scrutiny applied in such cases or the requirement that regulations of expression be narrowly drawn so as to not limit free expression unduly.” Plaintiffs’ argument that the company’s activities violate the Illinois Biometric Protection Act (BIPA) and other states’ privacy laws and allow the company to profit from private individuals’ biometric information should fail according to the developer since they neither used the likenesses for advertising or sales or to promote goods or services.

As to a second issue involving the locus of the activities at issue, Clearview believes that the plaintiffs have failed to prove that the data collection occurred in Illinois, contending that the conduct at issue involving the Illinois Biometric Privacy Act identified in the complaint occurred for the most part outside the state of Illinois and as such should be dismissed in its entirety.

The initial lawsuit filed against Clearview was brought by David Mutnick, an Illinois resident who claims that the company failed to obtain his consent before using his and other residents’ biometric data. Mutnick’s claims were joined by other Illinois residents as well as plaintiffs from California, New York and Virginia. The plaintiffs have also asked the court for an injunction designed to keep Clearview from distributing their personal data to foreign countries to whom the company is seeking to sell its software.  Clearview’s position is that any injunction will effectively put the company out of business.

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