A federal judge won’t let facial recognition tech company Clearview escape the massive class action it faces over allegedly violating biometric privacy laws.
U.S. District Judge Sharon Coleman issued an opinion Feb. 14 on Clearview’s motion to dismiss, her latest ruling in a consolidated class action involving allegations Clearview scraped more than three billion photographs posted online, then used artificial intelligence algorithms to scan facial geometry, harvesting unique biometric identifiers to build databases it sold to retailers, law enforcement agencies and others.
The larger lawsuit involves allegations against Clearview and its founder Hoan Ton-That and executive Richard Schwartz, both New York residents. Coleman said although there are statutory and common law claims under Virginia, California and New York law, “the centerpiece” of the lawsuit are accusations under the Illinois Biometrics Information Privacy Act.
Clearview argued its methodology is protected speech. They argued BIPA violates the First Amendment by inhibiting its ability to collect and analyze public information. But Coleman said that “oversimplifies” the allegations, because plaintiffs said Clearview’s “business model is not based on the collection of public photographs from the internet, some source code, and republishing information via a search engine, but the additional conduct of harvesting nonpublic, personal biometric data.”
Coleman also denied Clearview’s motion to dismiss based on the argument the BIPA claims violate Illinois’ doctrine of extraterritoriality. Clearview argued the plaintiffs are illegally attempting to apply Illinois law beyond Illinois' borders. Coleman said the plaintiffs needed only to show the conduct they alleged happened “primarily” and “substantially” in Illinois and that the open questions are more suitable for summary judgment. Even though Clearview said its data operation is based in New York, Coleman noted the complaint include an Illinois subclass and further noted allegations that Clearview “contracted with hundreds of Illinois entities, both public and private.”
The same logic informed Coleman’s reasoning regarding Clearview’s contention that taking the plaintiffs’ view of BIPA would violate the U.S. Constitution’s Dormant Commerce Clause.
“Whether BIPA controls commercial conduct that occurs wholly outside Illinois is a question best left for later in these proceedings after the parties have completed discovery,” Coleman wrote.
Clearview also argued BIPA’s language expressly excludes photographs, a position Coleman said “Illinois courts have uniformly rejected” because the identifiers are parts of the human body, not the medium used to convey those parts.
Coleman further wouldn’t dismiss Ton-That and Schwartz as individual defendants, agreeing with plaintiffs that the allegations involve both their conduct as Clearview officers and employees, and that they “acted outside of their corporate capacities because these corporate officers personally participated in the privacy tort by directing, ordering, ratifying, approving or consenting to the tortious act.” She did not, however, accept plaintiffs’ “alter ego theory of individual liability” because they failed to show the company was only a façade for the men.
Other aspects of Clearview’s motion to dismiss that failed to persuade Coleman include an argument it shouldn’t be liable for its subsidiary, Rocky Mountain Data Analytics; the contention BIPA prohibits only the sale of biometric data and not simply using biometric technology; and an attempt to show the plaintiffs lacked standing because they didn’t allege a concrete harm.
Turning to state subclasses, Coleman rejected Clearview’s efforts to dismiss claims under Virginia law by noting the complaint “sufficiently alleged that the Clearview defendants profited from the unconsented use of their likenesses under ‘for purposes of trade’ ” and that the complaint plausibly alleges violation of the state’s Computer Crimes Act.
Coleman agreed to dismiss two aspects of the complaint, agreeing with Clearview that New York’s Civil Rights Act pre-empts the plaintiffs’ unjust enrichment claim under New York common law and that the California subclass’ Unfair Competition Law claim “necessarily fails because personal information is not “property” for” that law’s purposes and because they didn’t plausibly allege unfair business practices.
However, Coleman did say the California common law right to publicity claim is sufficient because it needed only to allege unauthorized use of plaintiffs' image and likeness for commercial purposes. She also said “the California subclass had a reasonable expectation of privacy to their highly sensitive biometrics despite defendants’ argument that they had no reasonable expectation of privacy over photographs they uploaded to public websites.”
Clearview and its executives have been represented in the action by attorneys Precious S. Jacobs-Perry, Howard S. Suskin and Andrew J. Lichtman, of the firm of Jenner & Block, of Chicago and New York; and Floyd Abrams and Joel Kurtzberg, of Cahill Gordon & Reindel, of New York.
Plaintiffs are represented by attorneys Scott R. Drury, Mike Kanovitz and Andrew Miller, of the firm of Loevy & Loevy, of Chicago; Scott A. Bursor and Joshua D. Arisohn, of Bursor & Fisher, of New York; Frank S. Hedin, of Hedin Hall, of San Francisco; Michael Drew, of Neighborhood Legal, of Chicago; Michael Wood and Celetha Chatman, of Community Lawyers LLC, of Chicago; and Steven T. Webster and Aaron S. Book, of Webster Book, of Alexandia, Virginia.