By Celeste Bott | Law360 (July 22, 2020) — Three Illinois residents say their biometric privacy lawsuit against facial recognition technology company Clearview AI must be remanded to Illinois state court, arguing their claims are narrower than those made in similar pending suits and don’t allege the harm required for federal standing.
In a motion for remand filed Tuesday, named plaintiffs Melissa Thornley, Deborah Benjamin-Koller and Josue Herrera told an Illinois federal judge that the only relief they are seeking is statutory damages and attorney fees for Clearview’s alleged procedural violation of section 15(c) of Illinois’ Biometric Information Privacy Act, which prohibits private entities from selling, leasing, trading or profiting from another person or customer’s biometric information.
They argue that because their sole claim is that Clearview broke the law by selling access to a database of biometric facial scans containing their biometric identifiers and information to businesses in Illinois, that’s not enough to keep their case in federal court.
“Unlike all the other Clearview cases pending before the court, plaintiffs here make no claim of any other violation of BIPA, nor any claim based on any constitutional, common law, or statutory cause of action,” they said.
That was a strategic decision, they said. They said they find Clearview’s conduct in “secretly amassing a nationwide database of over 3 billion photographs and facial scans” to be “repugnant,” but they purposefully avoiding including that behavior in their lawsuit. The company has submitted declarations in other BIPA lawsuits pending in Illinois federal court asserting that it amassed its database on servers located outside of the state of Illinois, raising issues as to BIPA’s application, they said.
“Plaintiffs have framed their complaint to avoid this issue by limiting their claim to Clearview’s conduct in selling access to the biometric data in its database to customers in Illinois in violation of §15(c) of BIPA,” they said.
Citing the Seventh Circuit’s recent finding on federal standing for BIPA cases in Bryant et al. v. Compass Group U.S.A. Inc., they argued that the provision of BIPA at issue in their case, 15(c), doesn’t involve the law’s requirement for informed consent.
“Plaintiffs here suffered no ‘informational’ injury and were never deprived of their right to choose whether to allow their biometric data to be collected … or disseminated,” they said. “Bryant expressly precludes Article III standing where, as here, plaintiffs allege no actual harm resulted from the statutory violation at issue.”
If the court denies their bid for remand, they said, they consent for their case to be consolidated with similar lawsuits in Illinois federal court, as a plaintiff in another BIPA suit against Clearview, David Mutnick, filed a motion for on Monday. But the judge must address the remand issue first, they said.
“Mutnick is wrong when he contends that a consolidated complaint that includes plaintiffs’ claim would moot plaintiffs’ motion to remand,” they said. “Plaintiffs’ motion to remand raises a question regarding subject matter jurisdiction, so the motion must be decided before Mutnick’s consolidation motion.”
Clearview faces a series of lawsuits claiming its database is full of billions of facial data points “scraped” from images posted to platforms such as Facebook, Instagram and Twitter. Uploading a photo to the database allows users to identify private citizens and gives them access to all the personal details Clearview has obtained, according to the complaints.
On its website, Clearview touts its facial recognition software as a tool that can help law enforcement “catch the most dangerous criminals, solve the toughest cold cases and make communities safer.”
Counsel for both parties declined comment on Wednesday.
Thornley, Benjamin-Koller and Herrera are represented by Daniel M. Feeney and Zachary J. Freeman of Miller Shakman Levine & Feldman LLP, Kevin M. Forde, Brian P. O’Meara and Kevin R. Malloy of Forde & O’Meara LLP and David S. Golub and Steven L. Bloch of Silver Golub & Teitell LLP.
Clearview AI is represented by David Prescott Saunders, Andrew J. Lichtman, Howard S. Suskin, Lee Wolosky and Michael Ross of Jenner & Block LLP.
The case is Thornley et al. v. Clearview AI Inc., case number 1:20-cv-03943, in the U.S. District Court for the Northern District of Illinois.