An Illinois federal district court recently rejected dismissal of Illinois Biometric Information Privacy Act (“BIPA”) claims in In re Clearview AI, Inc., Consumer Privacy Litigation, No. 21-cv-135 (N.D. Ill.).  The Clearview plaintiffs alleged that Clearview violated their privacy rights without their knowledge and consent by scraping more than three billion photographs of facial images from the internet and using artificial intelligence algorithms on the images to harvest individuals’ unique facial biometric identifiers and corresponding biometric information.  Clearview sought dismissal of the BIPA claims under the First Amendment, extraterritoriality doctrine, dormant commerce clause, and BIPA’s express exemption for  photographs.  The court rejected these grounds, and declined to dismiss the BIPA claims.

Clearview first argued that BIPA violates the First Amendment by inhibiting its ability to collect and analyze publicly available photographs and information.  The district court rejected  this argument, and highlighted that plaintiffs’ allegations went beyond the mere collection of photographs from the internet—and also included alleged harvesting of non-public, personal biometric data.  The court accordingly found that Clearview’s process of creating a database included both speech and non-speech elements, and applied intermediate scrutiny in its analysis.  Analyzing the statute under this framework, the court concluded that BIPA did not violate the First Amendment.

The district court also rejected, at least at the pleadings stage, Clearview’s application of the extraterritorial doctrine and dormant commerce clause.  Clearview had argued that the scraping of images and creation of the searchable database took place in New York and that Illinois residents make up only a small percentage of the database.  The court, pointing to allegations in the complaint that Clearview’s conduct affected Illinois residents and that Clearview separately contracted with hundreds of public and nonpublic Illinois entities, concluded that Clearview AI’s arguments were too fact intensive to resolve at the motion to dismiss stage.

Lastly, the court rejected Clearview’s argument that the photography exemption under BIPA barred plaintiff’s claims, citing other Illinois cases that have distinguished between the underlying medium, the photograph, which is not protected by BIPA, and the biometric data inherent in facial geometry of individuals, which BIPA protects.  The court therefore declined to hold that BIPA exempts biometric data extracted from photographs.

Matthew Delgado

Matthew Delgado focuses on complex commercial litigation and class actions. He has experience with matters involving data privacy, antitrust, unfair competition, contract, and consumer protection. He also has experience with internal investigations.

Before joining the firm, Matthew clerked for the Honorable Yvonne Gonzalez…

Matthew Delgado focuses on complex commercial litigation and class actions. He has experience with matters involving data privacy, antitrust, unfair competition, contract, and consumer protection. He also has experience with internal investigations.

Before joining the firm, Matthew clerked for the Honorable Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California, and for the Honorable Timothy M. Burgess of the United States District Court for the District of Alaska. Matthew previously worked at a law firm in Southern California prior to clerking in California and Alaska.

Photo of Kathryn Cahoy Kathryn Cahoy

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved…

Kate Cahoy uses her substantial class action experience to help clients develop strategic and innovative solutions to their most challenging litigation matters. She specializes in defending clients in complex, high-stakes class action disputes involving privacy, antitrust, and consumer protection claims and has achieved significant victories for clients in the technology, entertainment, consumer product, and financial services industries. In addition, Kate has substantial experience litigating cases brought under California’s Section 17200 and other consumer protection, competition, and privacy laws, including the Sherman Act, California Consumer Privacy Act (CCPA), California Invasion of Privacy Act (CIPA), Wiretap Act, Stored Communications Act, Children’s Online Privacy Protection Act (COPPA), Video Privacy Protection Act (VPPA), and common law and constitutional rights of privacy, among others.

Photo of Eric Bosset Eric Bosset

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions…

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions, MDL proceedings, and other multi-party lawsuits. His trial victories include a jury verdict in an employment class action lawsuit that The National Law Journal ranked among the 25 most notable defense verdicts of the year.

Privacy and Consumer Protection

Eric was named “Most Valuable Player” in Privacy & Consumer Protection by Law360. He has an extensive practice representing Internet service providers, publishers and advertisers in class action litigation involving claims of unauthorized collection and disclosure of personally identifiable information (“PII”). He has successfully represented Microsoft, AOL, CBS, McDonald’s, Mazda, the Indianapolis Colts, and other companies in obtaining the dismissals of putative class action lawsuits that asserted federal law claims under the Electronic Communications Privacy Act (“ECPA”), Computer Fraud and Abuse Act (“CFAA”), and Video Privacy Protection Act (“VPPA”), as well as state law claims under the Illinois Biometric Information Privacy Act (“BIPA”) and for unfair practices, trespass, and invasion of privacy.

Eric also represents companies in connection with matters arising under the Fair Credit Reporting Act (“FCRA”), Fair and Accurate Credit Transaction Act (“FACTA”), Telephone Consumer Protection Act (“TCPA”), and other consumer protection statutes.

Employment and ERISA

Eric has extensive experience defending companies in individual and class action litigation brought under federal and state laws concerning discrimination, retaliation, whistleblowing, wage and hour disputes, and wrongful termination, as well as in class action litigation involving the Employee Retirement Income Security Act (“ERISA”). Eric has the rare distinction of having tried and won a jury verdict in a class action lawsuit alleging “pattern or practice” discrimination on the basis of age in connection with a corporate reduction in force. Bush, et al. v. Deere & Company (C.D. Ill.). He also secured the reversal on appeal of a class certification order in a “stock drop” lawsuit that claimed breaches of fiduciary duty in the administration of a company retirement savings plan. In re Schering Plough Corporation ERISA Litig., 589 F.3d 585 (3d Cir. 2009). Eric also represents clients in EEOC investigations.

Financial and Fintech

Eric’s practice includes the representation of financial and fintech companies on a broad array of civil litigation, arbitration, and regulatory enforcement matters relating to financial products and services, including matters for Wells Fargo Bank, JPMorgan Chase, Synchrony Bank, Envestnet, Yodlee, and MidFirst Bank.