In its opposition to a motion for a preliminary injunction in an ongoing Illinois Biometric Privacy Act (BIPA) case, controversial facial recognition startup Clearview AI explained that it was winding down its activities in the state of Illinois, arguing that this rendered the plaintiff’s requested relief moot.
Clearview stated “has taken and is continuing to take comprehensive steps to prevent the collection of facial vectors from photos associated with Illinois, and to prohibit the searching of existing photos associated with Illinois. Moreover, Clearview has taken steps to secure and implement limits regarding the retention of any Illinois photos. Clearview is terminating access rights to its app for all account holders based in Illinois and is terminating the accounts of any non-law enforcement or government entity.” As a result, Clearview argued that the court should deny plaintiff David Mutnick’s motion for preliminary injunction.
Clearview AI additionally stated that the motion should be denied because some of the defendants are not subject to personal jurisdiction in the court because they are New York residents. Clearview said “BIPA does not apply to Clearview,” noting that it cannot account for the company’s actions outside of Illinois and stating that if it were to be applied in a larger fashion it would violate the dormant Commerce Clause of the Constitution because it is attempting to “control conduct beyond the boundaries of the State.” Clearview added that even if the plaintiff were successful, he would not be able to show likelihood of success under BIPA and he “cannot meet his burden of showing an inadequate remedy at law.”
Clearview claims that it has voluntarily changed its business practices to not include data from Illinois residents and to only have government-related customers; as a result, Clearview is “cancelling the accounts of every customer who was not either associated with law enforcement or some other federal, state, or local government department, office, or agency.” This means that retail stores that used Clearview AI will no longer be able to do so. Clearview AI states that it has created a “geofence” around Illinois. While Clearview AI did not specifically mention taking these measures to comply with BIPA, it is likely that the company was taking these measures to comply with the statute and prevent future BIPA related litigation. Clearview also stated that it is creating an opt-out mechanism to not include photos in its database. Clearview appears hopeful that these measures will persuade the court to deem plaintiff’s motion moot.
Clearview AI had revealed its plans to cancel all non-law enforcement and non-government accounts to Buzzfeed News. The plaintiff informed the court about this revelation, stating that the number of users and times the users accessed this information was higher than previously thought and that this information supports Mutnick’s motion. However, Clearview AI responded that Mutnick’s filing was improper and should be “stricken and disregarded” by the court. Clearview AI adds that plaintiff’s counsel, Loevy & Loevy, did not disclose an allegedly “co-dependent relationship” with BuzzFeed News in the plaintiff’s supplement.
Clearview’s decision to cancel the accounts comes after two reports of data breaches, a suit from the state of Vermont, and an influx of private lawsuits in February, the month where the company experienced the most filings. In the past three months, Clearview AI has faced nine lawsuits in the past three months. The Southern District of New York hosts seven of the cases, while the Northern District of Illinois has two.
