Clearview AI lawsuit (re consent over scanning of online photos, USA)
Snapshot: In May 2020, the American Civil Liberties Union (ACLU) and five other non-profit organisations filed a complaint against Clearview AI (Clearview) in the Circuit Court of Cook County in Illinois, USA. The plaintiffs allege that Clearview AI used facial recognition technology to capture “faceprints” from Illinois residents using online photos, without obtaining the individuals’ consent which violates Illinois legislation. In August 2021, the court denied Clearview’s application to dismiss the complaint. The case, ACLU et al v Clearview, was settled in May 2022. The company did not admit liability.
A “faceprint” is a biometric identifier used to confirm a person’s identity. Clearview’s technology creates faceprints by scanning billions of publicly-available online photos of peoples’ faces worldwide, without the consent of people pictured. Clearview then stores the faceprints in a database, which also contains links to the webpages the photos were sourced from. The company says none of the servers hosting this database are in Illinois. Clearview’s database has been purchased by public entities (such as law enforcement and other government agencies) and by private companies (including major retailers). If purchasers want to identify an individual, they upload a photo and search the database for matches.
Clearview is facing many other lawsuits worldwide regarding its technology. Complaints have been filed before various European data protection agencies alleging violations of the European Union’s General Data Protection Regulation. Canada’s Office of the Privacy Commissioner has concluded that Clearview’s practices breach Canadian privacy law. Across the US, various class actions have been filed as well as complaints by other non-profit organisations.
Several large technology companies such as Twitter, Google and Facebook have also requested Clearview to stop mining their data.
The plaintiffs (six non-profit organisations) argue that Clearview obtained the faceprints of its clients without obtaining their written consent, as required under Illinois’ Biometric Information Privacy Act (BIPA). The plaintiffs argue that because these individuals are survivors of domestic violence and sexual assault, undocumented immigrants and members of other vulnerable communities, they have particular reasons to fear a loss of privacy, anonymity and security. The plaintiffs seek orders requiring Clearview to destroy all faceprints gathered from Illinois residents in violation of BIPA, and stop capturing new faceprints without obtaining consent under BIPA.
Clearview argues that the court does not have jurisdiction to hear the case, and that BIPA does not apply to its activities. Clearview also argues that BIPA is unconstitutional as it violates the First Amendment of the US Constitution, which precludes laws prohibiting free speech.
Various academics as well as the non-profit organisation the Electronic Frontier Foundation (EFF) have filed amicus briefs. For example the EFF in its amicus brief argues that although the First Amendment protects some forms of faceprinting, Clearview’s practices are not protected.
On 28 May 2020, the American Civil Liberties Union (ACLU), ACLU of Illinois, Chicago Alliance against Sexual Exploitation, Sex Workers Outreach Project Chicago, Illinois State Public Interest Research Group and Mujeres Latinas en Acción filed a complaint against Clearview AI in the Circuit Court of Cook County, Illinois.
On 7 October 2020, Clearview filed a motion applying to have the case dismissed.
On 27 August 2021, the court rejected Clearview’s motion to dismiss the case. The court rejected Clearview’s arguments that the court lacked jurisdiction, that BIPA does not apply and that BIPA is unconstitutional based on the First Amendment. The case will therefore proceed, and the court has not yet determined whether Clearview is liable for violating BIPA.
In May 2022, Clearview AI settled the lawsuit without admission of liability and accepted not to sell its facial recognition database to most US companies. It will not be able to provide its software "to any government contractors or state or local government entities in Illinois for five years." In addition, the company has to provide an online "opt-out" form on its website so that Illinois residents can make sure their faceprints can be blocked from search results if they are in the database.
Key news items
Victory! Lawsuit Proceeds Against Clearview’s Face Surveillance, Electronic Frontier Foundation, 30 August 2021
A.C.L.U. Accuses Clearview AI of Privacy ‘Nightmare Scenario’, New York Times, 28 May 2020
Clearview’s Faceprinting is Not Sheltered from Biometric Privacy Litigation by the First Amendment, Electronic Frontier Foundation, 5 November 2020
The ACLU Slammed A Facial Recognition Company That Scrapes Photos From Instagram And Facebook, BuzzFeed News, 10 February 2020
Documents from the plaintiffs
American Civil Liberties Union (ACLU)
ACLU et al v Clearview (page dedicated to the lawsuit)
ACLU v Clearview: Opinion of the Circuit Court of Cook County rejecting Clearview’s motion to dismiss, 27 August 2021
Plaintiff’s surreply to Clearview’s motion to dismiss, 5 January 2021
Clearview’s reply memorandum in support of motion to dismiss, 23 November 2020
Amicus brief filed by Electronic Frontier Foundation, 2 November 2020
Plaintiff’s response to Clearview’s motion to dismiss, 2 November 2020
Clearview’s memorandum in support of motion to dismiss, 7 October 2020
Complaint filed in the Circuit Court of Cook County, 28 May 2020