Judge: Clearview AI Cannot Use First Amendment as Defense in ACLU’s Privacy Suit

Late last week, an Illinois state court ruled in favor of the American Civil Liberties Union (ACLU) and other advocacy rights groups in their fight against Clearview AI Inc. over its unauthorized collection of Illinois residents’ faceprints. According to the order, the court has jurisdiction over the matter and the Illinois Biometric Information Privacy Act (BIPA) claims will proceed, despite Clearview’s proffered free speech defense.

Judge Pamela McLean Meyerson explained that the plaintiffs filed suit against Clearview in May 2020 alleging that the company fails to acquire consumers’ consent before plucking their photographs off the internet, cataloguing their facial geometry, a unique biometric identifier, and making the information available to public and private purchasers in an online database. The plaintiffs also contended that Clearview “did not publish a retention schedule or guidelines for permanently destroying individuals’ biometric identifiers,” in violation of BIPA.

Clearview moved to dismiss for want of subject matter jurisdiction and for dismissal on the merits. Several amici groups have weighed in on the case, including the Electronic Frontier Foundation in support of the plaintiffs.

The court ruled that it has jurisdiction over the matter because Clearview’s Illinois activities, including its marketing of services to residents and in-state businesses, make it reasonable for Clearview to anticipate and participate in litigation within the state. Furthermore, the opinion said, the activities that relate the defendant to the state are the same as those at issue in the lawsuit: its collection, organization, and sale of biometric information.

The court then undertook a merits analysis, first rejecting Clearview’s argument that BIPA does not apply to faceprints. According to the opinion, Clearview essentially conceded the point at oral argument, “choosing simply to rest on its briefs and not argue the matter further.” The court also moved past extraterritoriality and dormant commerce clause arguments before turning to the mainstay of its decision, whether the First Amendment to the United States Constitution renders BIPA an invalid restriction on free speech.

The court first determined that intermediate scrutiny was the appropriate standard to apply to because “BIPA’s speaker-based exceptions do not appear to favor any particular viewpoint,” and as such, it is a content-neutral regulation. The court then found the four-part intermediate scrutiny test satisfied.

The opinion reasoned that BIPA furthers the government’s important interest in preventing the unauthorized disclosure of biometric information in view of loss of privacy, anonymity, and security concerns. In addition, last week’s opinion held that any burden on free speech rights is incidental as the law is not motivated by such a discriminatory animus. Too, the limitations it places on Clearview are no greater than necessary as the defendant may continue to engage in its business, but with Illinois residents’ consent.