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January 15, 2021
By Laurann Wood | Law360 (January 14, 2021) -- The Seventh Circuit held Thursday that a lower court correctly sent back to state court a biometric privacy lawsuit against facial recognition technology company Clearview AI, saying the residents who sued were free to avoid federal court by narrowing their claims.
Emphasizing that "allegations matter" when it comes to determining an individual's standing to pursue a biometric privacy claim in federal court, a three-judge panel said "it's no secret" that Illinois residents Melissa Thornley, Deborah Benjamin-Koller and Josue Herrera took care to accuse Clearview AI of unlawfully profiting from pictures it scanned on the internet without also alleging they suffered a concrete injury that would give them Article III standing to proceed in federal court.
"But in general, plaintiffs may do this," the court said. Just as plaintiffs may include non-diverse defendants to avoid diversity jurisdiction, or rely solely on state law to avoid federal-question jurisdiction, the residents suing Clearview here "may take advantage of the fact that Illinois permits [Biometric Information Privacy Act] cases that allege bare statutory violations, without any further need to allege or show injury," the panel held.
The panel stressed that its ruling expresses no opinion regarding the adequacy of the residents' allegations, saying "that will be for the state court to address."
This was the court's first opportunity to examine a plaintiff's standing to proceed federally on a claim under section 15(c) of the Illinois Biometric Information Privacy Act, which blocks private entities from sharing or profiting from the biometric information they collect without consent. But it likely won't be the last, the panel said.
As shown in circuit BIPA precedent, including the court's Bryant v. Compass Group and Fox v. Dakkota Integrated Systems decisions in which judges found standing for Fox's claims under section 15(a) of BIPA but not Bryant's, determining federal standing for essentially any BIPA claim depends heavily on the allegations in the complaint at issue, the court said.
"I confess that I have not yet been able to extract from these different lines of cases a consistently predictable rule or standard," Judge David Hamilton said in a special concurrence.
The Illinois residents' attorney, David Golub of Silver Golub & Teitell, told Law360 on Thursday that he and his clients believe the court crafted "a very solid decision" that "upholds a plaintiff's right to go forward in state court in a state action involving state residents."
"We also think that this is the kind of case that BIPA was meant to address, this idea of creating this database of 3 billion photographs and indiscriminately downloading people's photographs and selling it in a biometric fashion," Golub said. "We've used the word pernicious to describe it, and we think the state court's going to get a chance to see whether what Clearview did has any justification."
Lee Wolosky of Jenner & Block LLP, who represents Clearview, told Law360 in a written statement Thursday that "Clearview AI will vigorously defend this action."
Clearview's alleged violation of BIPA section 15(c) is the sole claim in the Illinois residents' suit. On behalf of a proposed class of affected Illinois residents, they allege Clearview violated the law by selling access to a database of biometric facial scans containing their biometric identifiers and information to businesses in Illinois.
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, many of which officially hit the Northern District of Illinois' docket Thursday as consolidated multidistrict litigation.
The facial recognition company removed the residents' suit to federal court after they launched it in state court in May, but the residents asked the district court to remand their suit since it failed to allege an Article III injury. The lower court granted their request in October, saying a plaintiff "is the master of her own complaint" and that the residents had made a permissible strategic decision to narrowly tailor their allegations.
Judges Diane Wood, David Hamilton and Frank Easterbrook sat on the Seventh Circuit panel.
The residents are represented by David Golub of Silver Golub & Teitell LLP, Daniel Feeney of Miller Shakman Levine & Feldman LLP and Kevin Forde, Brian O'Meara and Kevin Malloy of Forde & O'Meara LLP.
Clearview is represented by Clifford Berlow, David Saunders, Howard Suskin, Lee Wolosky and Andrew Lichtman of Jenner & Block LLP and Floyd Abrams and Joel Kurtzberg of Cahill Gordon Reindel LLP.
The case is Melissa Thornley et al. v. Clearview AI Inc., case number 20-3249, in the U.S. Circuit Court of Appeals for the Seventh Circuit.
--Additional reporting by Celeste Bott. Editing by Emily Kokoll.