Clearview AI, which sells online facial recognition services, has agreed to end dealings with Illinois police departments and all other governments in the state for at least five years under the terms of a new settlement announced with the American Civil Liberties Union, ending a class action accusing the company of violating a state biometrics privacy law.
Signed May 4, the deal also allows Illinoisans to opt out of databases maintained by New York-based Clearview.
“There is a battle being fought in courtrooms and statehouses across the country about who is going to control biometrics - Big Tech or the people being tracked by them - and this represents one of the biggest victories for consumers to date,” said J. Eli Wade-Scott, an attorney from the firm of Edelson PC, which partnered with the ACLU on the legal action.
The ACLU and Edelson, a Chicago plaintiffs law firm known for filing technology law class actions, filed suit in May 2020 in Cook County Circuit Court, accusing Clearview of violating informed consent provisions of the Illinois Biometric Information Privacy Act. Other named plaintiffs include the Chicago Alliance Against Sexual Exploitation, Sex Workers Outreach Project Chicago, Illinois State Public Interest Research Group and Mujeres Latinas en Acción.
Clearview deploys technology that scrapes images from public websites to create facial recognition databases, which are in turn marketed nationwide to law enforcement agencies, banks and loss prevention specialists.
“The (Clearview) app user in Illinois has uploaded a photograph of an individual the user is seeking to identify,” according to the May 2020 complaint. “Clearview AI’s facial recognition technologies scanned the face in the uploaded photograph and converted the facial geometries of the individual pictured in the photograph into mathematical formulas or ‘vectors;’ Clearview AI’s technologies then identified the individual in the photograph by comparing the newly-created facial geometries with facial vectors of individuals whose photographs had previously been stored and converted to biometric form in Clearview AI’s database; the Clearview AI app then displayed all photographs in the Clearview AI’s database of the matched individual to the app user.”
According to a settlement agreement, Clearview agreed to a permanent nationwide injunction barring it from allowing paid or free access to its database to any private entity or individual if that access doesn’t comply with BIPA. The company can still work with federal government agencies or state-based bodies outside of Illinois. Clearview retained the right to petition for dissolution of the injunction, should state or federal law change to reflect its current business model.
The five-year state ban for using Clearview’s app applies to “Illinois state, county, local or other government agencies and contractors working for those agencies in Illinois, including state and local police departments and other state and local law enforcement agencies,” according to the agreement. The company also agreed to deny paid or free access to the app to private entities in Illinois for the same window, even if that access might fall under BIPA rules.
The ACLU agreed to release Clearview from the claims in its complaint and pledged not to sue Clearview under BIPA as alleged in the claim or detailed in Clearview’s counterclaim, contingent on compliance with settlement terms.
Clearview will delete all facial vectors in its app that existed before it stopped giving access to private parties, and it will maintain an online opt-out database for Illinoisans. The company will pay $50,000 to publicize that program within 14 days of the settlement being finalized. It further will attempt to screen any photos uploaded in or taken within Illinois and pay $250,000 in legal fees to plaintiffs’ attorneys.
A consent order formalizing the injunctions under terms the settlement established is now pending before Cook County Judge Pamela Meyerson. Under the order, the judge would dismiss the lawsuit on the merits, with prejudice, and retained jurisdiction over enforcement, administration and interpretation of the settlement terms and related injunctions.
Clearview continues to face several other BIPA-related class actions asking courts to order Clearview to pay potentially massive financial damages for allegedly violating the Illinois BIPA law.
In announcing the settlement, the ACLU said the success of its class action against Clearview demonstrates the need for other states to adopt laws that mimic the law in Illinois that has spawned thousands of class action lawsuits against employers and other companies throughout the state since 2015.
“By requiring Clearview to comply with Illinois’ pathbreaking biometric privacy law not just in the state, but across the country, this settlement demonstrates that strong privacy laws can provide real protections against abuse,” said Nathan Freed Wessler, a deputy director of the ACLU Speech, Privacy, and Technology Project, in the press release.
Business groups have said the Illinois BIPA law's effects are far reaching and harmful to the economy, and the law is badly in need of reform to balance out what critics say are abusive "gotcha" lawsuits allowed under the BIPA law, which "extort" settlements from businesses.