On Thursday, Seventh Circuit Judges Eastbrook, Wood, and Hamilton, via an order and opinion from Judge Wood, considered standing in a biometric privacy lawsuit against Clearview AI, an artificial intelligence company known for its facial recognition tool, affirming the district court’s decision to remand the suit to Illinois state court. The defendant advocated for keeping the case in federal court, while the plaintiff successfully argued that the case remains in state court.
The Illinois Biometric Information Privacy Act (BIPA) “provides robust protections for the biometric information of Illinois residents…by regulating the collection, retention, disclosure, and destruction of biometric identifiers or information.” The court noted that the influx of biometric data has led to litigation, which must be brought under Article III standing. The court stated that the question before the court is whether the plaintiff-appellees have shown such standing.
The court noted that interestingly, the plaintiff “insists that she lacks standing, and it is the defendant, Clearview AI, Inc., that is championing her right to sue in federal court.” The complaint was originally filed in Illinois state court, but Clearview removed it to federal court. However, the plaintiff sought to return to state court to litigate the BIPA allegations. The court stated that the lawsuit “may stay in federal court, however, only if the more stringent federal standard for standing can be satisfied; the court added that Illinois “has a more liberal attitude towards the kinds of cases its courts are authorized to entertain.”
The Seventh Circuit noted that the plaintiff and putative class alleged Clearview AI violated Section 15(c) of BIPA in an amended complaint. The plaintiff claimed that the alleged violation was “only a ‘bare procedural violation, divorced from any concrete harm,’ … and thus did not support Article III standing.” The Seventh Circuit stated that the district court agreed, stating that the plaintiff alleged “only a bare statutory violation, not the kind of concrete and particularized harm that would support standing, and thus ordered the action remanded to the state court.” However, Clearview AI sought to appeal the district court’s order and keep the case in federal court. The Seventh Circuit affirmed the district court decision to remand the lawsuit to state court.
The Seventh Circuit found that Clearview AI bears the burden to show that the plaintiff has Article III standing since it, not the plaintiff, wants the federal forum. The court noted that to establish Article III standing, one must demonstrate that the plaintiff: “(1)…suffered an injury in fact that is concrete, particularized, and actual or imminent, (2) that the injury was caused by the defendant, and (3) that the injury would likely be redressed by the requested relief.” The court found that the second and third requirements have “no serious dispute.” Therefore, the court only considered the first requirement.
The court stated that Section 15(c) states “No private entity in possession of a biometric identifier or biometric information may sell, lease, trade, or otherwise profit from a person’s or a customer’s biometric identifier or biometric information.” Accordingly, the plaintiff averred that her and the putative class’s respective biometrics were included in the Clearview AI Database without their knowledge or consent. Additionally, the plaintiff claimed that the putative class did not “suffer( ) any injury as a result of the violations of Section 15(c) of BIPA other than the statutory aggrievement.” Clearview AI purportedly felt that this did not “suffice to show a lack of Article III standing,” so it removed the suit to federal court. However, the district court felt that, as the plaintiff alleged, she lacked Article III standing. The Seventh Circuit claimed that without concrete allegations of specific harm and only general, regulatory violations the plaintiff lacks Article III standing for federal court. Thus, the case is remanded to Illinois state court.
Judge Hamilton issued a concurring opinion, adding “(s)ooner or later, though, I hope, the Supreme Court will revisit the problem of standing in private actions based on intangible injuries under a host of federal consumer-protection statutes.”