On Friday in the Northern District of Illinois, Clearview AI opposed the plaintiffs’ motion for preliminary injunction in a biometrics lawsuit against the facial recognition company.
The plaintiffs moved for a preliminary injunction against Clearview AI, alleging that it surreptitiously scraped and obtained the plaintiffs’ and class members’ photographs and harvested their biometrics to use in the company’s searchable facial recognition database in violation of Illinois’ Biometric Information Privacy Act and failed to adequately remedy this conduct on its own.
As part of the motion, the plaintiffs sought to enjoin Clearview AI and the named defendants from continuing its purportedly unlawful conduct, including stopping the defendants from possessing, using, and storing the unlawfully collected biometrics; collecting the biometrics without notifying individuals or asking permission; and selling or profiting from peoples’ biometrics without consent. The plaintiffs asserted that while the defendants stated that they are “self-reformed,” this is not accurate, pointing to alleged contradictions with statements and company conduct.
According to the memorandum in opposition, the plaintiffs asked the court “to do something that no court appears to have ever done before – issue a preliminary injunction under the Illinois Biometric Information Privacy Act (‘BIPA’).”
Clearview AI asserted that the plaintiffs offered “no evidence of a BIPA violation or imminent harm to the putative class.” Specifically, Clearview AI stated that “Plaintiffs focus on their own, unsubstantiated and speculative opinions of the ‘dangers’ of Clearview’s product, while ignoring the substantial, concrete harm” an injunction would cause to the defendant and the public. Clearview AI contended that the plaintiffs’ claims do not warrant granting a preliminary injunction because they “failed to satisfy every element necessary for an injunction to issue.”
Clearview averred that the plaintiffs have based their claims on false and unsupported allegations and that Clearview operates within an exemption to BIPA, as a subcontractor to government agencies, thus, the plaintiffs are not likely to succeed on the merits and cannot show irreparable harm.
For example, Clearview claimed that the plaintiffs cannot show a likelihood of success because they did not address the following defenses: “applying BIPA to Clearview would violate the extraterritoriality doctrine of Illinois and the dormant Commerce Clause of the U.S. Constitution; applying BIPA here would violate the First Amendment to the U.S. Constitution; and BIPA does not apply here because Clearview uses its facial recognition app solely as an agent or contractor of government agencies.” The defendants noted that “without a violation of BIPA, Plaintiffs cannot demonstrate any harm, let alone irreparable harm.”
Additionally, Clearview AI proffered that the plaintiffs failed to show the balance of equities favors an injunction because, for instance, since Clearview “currently operates solely as an agent or subcontractor of governments and government agencies, Plaintiffs can point to no harm absent an injunction.” However, Clearview AI argued that it would be harmed by an injunction because “depending on the relief fashioned, an injunction could force Clearview to cease operations nationwide” and “the injunction requested would infringe Clearview’s First Amendment rights” and public interest would be harmed “since government agencies would no longer be able to use Clearview’s technology.”
The plaintiffs are represented by Loevy & Loevy; Bursor & Fisher P.A.; Hedin Hall LLP; Neighborhood Legal LLC; Community Lawyers LLC; and Webster Book LLP. Clearview AI and the defendants are represented by Jenner & Block LLP and Cahill Gordon & Reindel LLP.