September 6, 2021

BIPA claims based on photographs survives motion to dismiss

On August 27, 2021, the Circuit Court of Cook County, Illinois denied Clearview AI, Inc.’s motion to dismiss in a suit brought by the American Civil Liberties Union and several other non-governmental organizations under the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 et seq.  

Clearview pulls photographs (purportedly in the billions) from publicly available sources, and then uses specific measurements of facial characteristics to compile databases of biometric “faceprints”  that can be searched using facial recognition technology.  Clearview then sells the databases and the technology to both private and public customers, including law enforcement agencies.  The Plaintiffs sought injunctive relief, claiming that Clearview’s Illinois activities violate BIPA’s requirements that businesses obtain informed consent before collecting biometric data, and provide a publicly available policy describing the purpose of such collection and the data retention and destruction practices for biometric data.
Clearview moved to dismiss on the grounds that the Illinois court lacked jurisdiction, and that the complaint was legally insufficient.  The court dispensed with the jurisdictional argument, noting that Clearview had sufficient contact with Illinois and its residents for specific jurisdiction to apply.

Clearview’s legal insufficiency argument was three-pronged:  

• First, Clearview argued that BIPA does not apply to photographs or to faceprints derived from photographs, but the court disagreed, noting that while the statute expressly excludes photographs from the definition of “biometric identifiers,” it expressly includes scans of “face geometry” within the definition.  Clearview’s faceprints, although derived from a photograph, ultimately fall within the protections of BIPA.

• Second, Clearview argued that the application of BIPA protections would constitute an illegal extraterritorial application of the law, and a violation of the dormant Commerce Clause of the US Constitution.  The court, however held that the plaintiffs’ complaint was sufficient to infer that Clearview’s conduct had occurred in Illinois, so the extraterritoriality doctrine did not warrant dismissal of the complaint, and that the dormant Commerce Clause was not appropriately invoked simply because Clearview’s own practices made it difficult to comply with BIPA.  The court took particular issue with this latter point, writing that Clearview had essentially proffered a “too big to comply” argument.

• Third, Clearview claimed that its activities constitute protected speech under the First Amendment, and must therefore survive strict scrutiny by the court.  The court found, however, that BIPA’s restrictions are content-neutral, invoking intermediate rather than strict scrutiny, and that the statute’s demands are sufficiently justified to pass constitutional muster at this level of scrutiny.

The court’s ruling was limited to an affirmation of jurisdiction, and a determination that the complaint states a cause of action for which relief may be granted.  There has not yet been a ruling on liability.

Memorandum Opinion and Order