In a class action lawsuit filed in the U.S. District Court for the Northern District of Illinois, Clearview Al Inc. faces allegations that it uses facial recognition technology that violates the Illinois Biometric Information Privacy Act (BIPA). The complaint alleged that Clearview scraped over three billion images from various social media platforms and other online sources to create a facial recognition database. However, BIPA requires businesses to provide notice to consumers and obtain consent before collecting biometric data. In response, Clearview argued that BIPA violates the First Amendment in that BIPA inhibits Clearview’s ability to collect, use, and analyze publicly-available information because the company’s analysis of public faceprints is protected speech.
This week, District Judge Sharon Johnson Coleman ruled against Clearview’s argument. Judge Coleman found that, even though Clearview uses publicly-available photos from websites and social platforms in creating its database, it also yields unique biometric identifiers which are not publicly available. Clearview’s actions are both speech and non-speech conduct, implicating the First Amendment, but Judge Coleman held that BIPA is narrowly tailored to only protect highly-sensitive biometric data of Illinois residents and to allow residents to share their information with consent.
Therefore, Judge Coleman denied Clearview’s motion to dismiss under several state laws, but did dismiss claims of unjust enrichment under New York law, and alter ego claims against the company’s co-founders.
The suit will continue and, as Judge Coleman suggested, Clearview could argue its position in a motion for summary Judgment after the parties have completed discovery.
Copyright © 2022 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XII, Number 48