Clearview AI, a software company building controversial facial recognition technology, continues to come under fire for its use of biometric data. With concerns about privacy protection on the rise, the company is now facing lawsuits in states such as New York and Illinois—the latter of which boasts one of the most comprehensive privacy statutes governing biometric data and its usage. Currently, Clearview has a pending motion before the United States Judicial Panel for Multidistrict Litigation to consolidate nearly a dozen cases and transfer them to New York.
Clearview AI’s Controversial Background
Clearview AI’s technology collects public images of individuals, amassing them in a database, and provides image matches of uploaded photos of any person, along with links to its web origin. Its database is composed of over 3 billion images scraped from popular social media websites, such as Facebook, among many others.
Over the past year, more than 600 law enforcement agencies, ranging from local police departments to the Federal Bureau of Investigation, have utilized Clearview AI’s technology to identify otherwise anonymous or unknown people. In addition to law enforcement agencies, Clearview has been used by retailers, such as Macy’s and Best Buy, for security purposes and to identify shoppers. No other technology has been able to accomplish facial recognition to this extent, and accordingly, issues concerning privacy and the potential for abuse have been raised.
Legal Action Against Clearview
A number of class action lawsuits across states have been filed against the New York-based company, including in Illinois, New York, California. The suits allege violations of state privacy laws, as well as claims of unjust enrichment. The most cited statute has been the Illinois Biometric Information Privacy Act (BIPA), with class actions in New York and California both alleging violations of the BIPA in their respective complaints. The BIPA is arguably the strictest state law concerning biometric data, in that it requires companies to inform a person if their data is being collected and obtain a written release for the collection. Under the BIPA, an individual’s data cannot be sold. All the complaints against Clearview share similar underlying factual allegations that Clearview obtained and used their images without their knowledge or consent—a glaring violation of the BIPA.
NY-IL Transfer Denied
With some lawsuits transferred to other districts on consent of the parties, the bulk of the class actions are now pending in the Southern District of New York and the Northern District of Illinois. And according to the orders of the two respective federal judges, the cases were continued separately and concurrently. After finding that the plaintiffs properly alleged personal jurisdiction over Clearview AI in the Northern District of Illinois, Judge Sharon Johnson Coleman denied Clearview AI’s motion to transfer venue to New York. Per Judge Coleman’s opinion, the cases’ material events occurred in Illinois and harmed Illinois citizens.
Judge Coleman further noted that Illinois courts have more familiarity with the BIPA statute and have a strong interest in protecting the privacy rights of their own citizens.
Prior to the findings in the Illinois case, Judge Colleen McMahon of the Southern District of New York denied a motion made by one of the plaintiffs to intervene, or in the alternative, transfer the case to Illinois. The judge held that “while all premised on the same underlying facts,” the New York cases and Illinois cases “raise different legal issues, have partially non-overlapping class definitions, and may require different discovery,” finding that these facts undercut the movant’s “claimed interest in seeing that they are all resolved in the same manner.”
With two concurrent sets of actions in two different federal districts, Clearview AI—along with plaintiffs of five of the actions—have moved before the United States Judicial Panel on Multidistrict Litigation to consolidate the pretrial proceedings in New York. As Clearview argues, without centralization, the two districts “would need to separately resolve the motions addressing identical factual and legal issues, which is a waste of judicial and party resources, and creates a significant risk of inconsistent rulings, especially given the novelties and complexities of data privacy law generally and facial-recognition technology in particular.” The plaintiff attorneys in support of consolidation cite the “growing number of non-Illinois residents pursuing non-Illinois state claims against Clearview.”
Next Steps for Clearview AI Litigation
As of now, the future of the Clearview AI litigation is in the hands of the U.S. Judicial Panel as it decides whether to consolidate the pending cases. While there are arguments to be made both for and against the transfer, it is indisputable that coordination into one district can avoid possibly conflicting court decisions. Particularly when handling such a novel area of law such as biometrics, such conflicts could create confusion down the road.
Interestingly, the Judicial Panel had recently issued an order to consolidate and transfer ten lawsuits against the video app, Tik Tok, to the Northern District of Illinois. These lawsuits, like those against Clearview AI, allege that their biometric information was collected in violation of the BIPA.
If past facial recognition lawsuits are any indication, Clearview AI may very likely reach a settlement. In January this year, Facebook agreed to pay $650 million to settle a class action lawsuit related to its own facial recognition service, Tag Suggestions, which uses software to suggest the names of people that might be in your photos. Like the complaints filed against Clearview AI, the plaintiffs in the Facebook suit alleged violations of the BIPA and claimed that their photos were used without their permission or consent.
Overall, the motion for consolidation is only one step in what will likely be a long and complex litigation process. In light of the importance of biometrics, it will likely set legal precedents in the field for years to come.
