CHICAGO — Facial recognition tech company Clearview AI says it has effectively mooted the need for an injunction sought by the plaintiffs leading a class action under Illinois' biometrics privacy law, saying its has moved to entirely wall Illinois off from its data scraping operations and will no longer do business with non-law enforcement agencies in the state.
The company also warned allowing such an injunction under Illinois' Biometric Information Privacy Act would serve to effectively extend the reach of BIPA to anyone in the country, even if they have no business ties to Illinois.
A week after asking U.S. District Judge Sharon Coleman to dismiss the complaint by Illinoisan David Mutnick, the New York-based purveyor of facial recognition data filed a May 6 motion asking the judge to deny a request for an injunction under the Illinois BIPA law.
The motion is part of a larger response to the Jan. 22 lawsuit David Mutnick filed against Clearview, and against its founder Hoan Ton-That and executive Richard Schwartz, both New York residents. The suit alleges the company violated personal privacy rights by creating a database of images scraped from public websites to be sold to police as well as banks and retail theft specialists. This filing addresses Mutnick’s April 8 injunction request.
According to Clearview’s motion, no court has granted a request like Mutnick’s under BIPA. The company outlined reasons the request should be denied, beginning with a lack of jurisdiction over the defendants, all based in New York. The company also said the injunction isn’t needed. Although it maintains BIPA doesn’t apply, Clearview nonetheless already “has taken and is continuing to take comprehensive steps to prevent the collection of facial vectors from photos associated with Illinois, and to prohibit the searching of existing photos associated with Illinois.”
That change includes what the company called a “geofence” around Illinois, so that it won’t collect images with metadata pointing to the state, or from servers displaying Illinois IP addresses or websites with URLs including words such as Illinois or Chicago. If a user manages to upload an image associated with Illinois, “Clearview will not initiate a search with that image or generate a face vector.”
In addition to those limitations, Clearview also said it has new limits on retention of Illinois photos and “is terminating access rights to its app for all account holders based in Illinois and is terminating the accounts of any non-law enforcement or government entity.”
Clearview also reasserted its position BIPA can’t apply because Illinois law can't be made to apply to a company that has no connectionst to Illinois. All of Mutnick’s allegations address images organized in a searchable database stored on servers based in New York and New Jersey, the company said. Also, the company has no employees or offices in Illinois, nor does it market or advertise in the state.
“If BIPA were applied in an extraterritorial fashion, as (Mutnick) demands, it would violate the dormant Commerce Clause,” Clearview stated. It added that Mutnick’s lawsuit “presents an egregious example because Clearview’s home state has considered BIPA-style legislation, but has never enacted it.”
Even if Coleman disagreed with all those arguments, the company added, denial of the injunction still would be appropriate because Mutnick “cannot show that he has a likelihood of success under BIPA.” Beyond that, the company said Mutnick can’t prove there is no remedy beyond his requested injunction because BIPA provides for statutory damages.
“To take any additional steps beyond those already taken by Clearview would effectively put Clearview out of business,” the company said. “Conversely, in light of the actions already taken by Clearview, (Mutnick) stands to gain little more from an injunction.”
Clearview also took issue with Mutnick waiting three months to request the injunction, alleging his “delayed timing suggests that he was not concerned about imminent harm, but rather about positioning" his attorneys to take charge of the class action.
Clearview also restated objections to Mutnick’s attempts to intervene in similar litigation filed in New York, accusing him of trying to get plaintiffs in those matters to refile in Illinois. The company said that bolstered its April 27 motion to have the complaint dismissed for lack of jurisdiction or transferred to New York.
Mutnick is represented by Chicago’s Loevy & Loevy, which also seeks to be certified as counsel for the proposed nationwide class and Illinois subclass.
Clearview is represented by Jenner & Block, with offices in New York and Chicago.