CHICAGO — A federal judge has dismissed a class action alleging Clarifai, a visual recognition artificial intelligence developer, violated a state biometrics law by scraping faces from images uploaded to the OKCupid dating service, as the judge said the plaintiffs didn't present enough in their case so far to demonstrate Clarifai's actions targeted Illinois residents enough to bring them under the state's biometrics privacy law.
In February 2020, attorneys Keith Keogh, Theodore Kuyper and Gregg Barbakoff, of the Chicago firm of Keogh Law, sued New York-based Clarifai in Cook County Circuit Court on behalf of named plaintiff Jordan Stein, identified only as an Illinois resident who has been an OKCupid user since 2013.
According to the complaint, Clarifai used a “massive face database” culled from “OKCupid users’ profile photographs” to help train its A.I. programs to better recognize human faces. Stein also said Clarifai indicated a willingness to “sell its facial recognition technology to foreign governments” and allow the technology to be used in “autonomous weapons” systems.
After removing the case to federal court, Clarifai moved for dismissal, arguing Stein’s complaint didn’t establish how the alleged misconduct specifically targeted Illinoisans in order to justify the purported violation of the Illinois Biometric Information Privacy Act (BIPA).
U.S. District Judge Sara Ellis issued her opinion March 16. Although Clarifai advanced several legal theories in seeking dismissal, Ellis said the matter of personal jurisdiction was sufficient. She explained Stein’s complaint attempted to establish specific personal jurisdiction, a standard requiring proof the company intentionally directed activities to Illinois and that the alleged legal harm to Illinois residents covered by the BIPA law stems from that conduct.
According to Ellis, Clarifai created a database of thousands of unique facial images, scanning biometric data to extract geometrical details in order to build and inform algorithms. Its relationship with OKCupid began in 2014, and Stein said Clarifai never notified her it had access to the images she uploaded nor gave details on how it used that information. She said she learned of the arrangement through a July 2019 New York Times article.
Stein’s complaint said Clarifai got access to OKCupid’s images through Corazon, a Chicago-based venture capital fund that has two principals, Sam Yagan and Max Krohn, who founded the dating service. Krohn allegedly used his personal email address to give the images to Clarifai CEO Matthew Zeiler.
“Clarifai also provides pre-trained visual recognition models, including a demographic model, that can recognize certain attributes in an image,” Ellis wrote. “Since May 2018, Clarifai may have sold 58 demographic models to two customers located in Illinois. These sales brought in approximately 7 cents in revenue, as Clarifai bills its customers at a rate of $1.20 per $1,000 operations.”
Although Corazon invested in Clarifai, Ellis continued, that third-party relationship doesn’t have any bearing on the claims of BIPA violations. Ellis said Stein didn’t counter Clarifai’s assertion it doesn’t develop or educate its technology in Illinois, nor does it have any knowledge of where OKCupid users live.
Ellis pointed to multiple U.S. Seventh Circuit Court of Appeals opinions establishing the availability of an interactive website to residents of a state isn’t sufficient to create the kind of jurisdiction underpinning Stein’s complaint. Extensive sales in a given state could help make that case, she continued, “but such evidence does not exist here.”
Stein said her images are in Clarifai’s possession and that she remains an active OKCupid user. But Zeiler argued his company didn’t target any of its marketing, sales or commercial activity toward any Illinois clients. Further, it has not and does not have any employees, property or operations in the state.
Ellis dismissed Stein’s claims without prejudice and terminated the case.
Clarifai has been represented in the action by attorneys Melissa A. Siebert, Amy Y. Cho and Erika A. Dirk, of the firm of Shook Hardy & Bacon, of Chicago.