By Celeste Bott | Law360 (October 26, 2020) — An Illinois federal judge sent a biometric privacy lawsuit against facial recognition technology company Clearview AI back to state court Friday, saying the Prairie State residents “purposely narrowed” their claim to seek only statutory damages.
While Clearview contends named plaintiffs Melissa Thornley, Deborah Benjamin-Koller and Josue Herrera had attempted to manipulate their claims, a plaintiff “is the master of her own complaint,” U.S. District Judge Sharon Johnson Coleman said.
“Plaintiffs purposely narrowed their claim to the general prohibition of Clearview selling and profiting from plaintiffs’ biometric data and filed their lawsuit in state court where such actions are allowed without the constraints of Article III standing,” Judge Coleman said. “In the end, plaintiffs did not allege an injury-in-fact, and thus Clearview has failed to establish Article III standing.”
Citing the Seventh Circuit’s recent finding on federal standing for Biometric Information Privacy Act cases in Bryant et al. v. Compass Group U.S.A. Inc ., the plaintiffs argued in July 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’ landmark privacy law, which prohibits private entities from selling, leasing, trading or profiting from another person or customer’s biometric information.
That sole claim — that Clearview allegedly broke the law by selling access to a database of biometric facial scans containing their biometric identifiers and information to businesses in Illinois — isn’t enough to keep their case in federal court, they argued.
Judge Coleman agreed Friday, saying that unlike in other recent actions against the company, these plaintiffs haven’t brought their lawsuit under Section 15(b) of BIPA, which requires informed consent and certain disclosures.
“More specifically, plaintiffs do not base their lawsuit on Clearview scraping their photographs from public sources, converting their photographs into biometric facial scans, and disclosing biometric facial scans,” the judge said.
That was a strategic decision, Thornley and the others said. They said they found Clearview’s conduct in “secretly amassing a nationwide database of over 3 billion photographs and facial scans” to be “repugnant,” but they purposefully avoided 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, raising questions as to BIPA’s application, they said.
Clearview is facing 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 suits.
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 the parties could not be immediately reached for comment Monday.
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.