An AI company harvested publicly available photographs from social media sites across the internet and then used those photographs to derive a biometric facial scan of each individual in the photograph. The company sold this database to law enforcement agencies to use in identifying persons of interest or unknown individuals. A woman sued in a class action, arguing that the harvesting of biometric data violated Illinois’ Biometric Information Privacy Act. The company removed the case to federal court, and the federal court ruled that the plaintiffs’ claims lacked standing under Article III. The appellate court agreed with the district court and affirmed, ordering that the case be remanded to state court.
Clearview AI is in the business of facial recognition tools. Users may download an application that gives them access to Clearview’s database. The database is built from a proprietary algorithm that scrapes pictures from social media sites such as Facebook, Twitter, Instagram, LinkedIn, and Venmo. The materials that it uses are all publicly available. Clearview’s software harvests from each scraped photograph the biometric facial scan and associated metadata, which it stores in its database. The database currently contains billions of entries.
Many of Clearview’s clients are law enforcement agencies. The clients primarily use the database to find out more about a person in a photograph, such as to identify an unknown person or confirm the identity of a person of interest. Users upload photographs to Clearview’s app, and Clearview creates a digital facial scan of the person in the photograph and then compares the new facial scan to those in its database. If the program finds a match, it returns a geotagged photograph to the user and informs the user of the source social-media site for the photograph.
In the wake of a New York Times article profiling Clearview, Melissa Thornley filed suit in Illinois state court under the Illinois Biometric Information Privacy Act (BIPA). BIPA provides robust protections for the biometric information of Illinois residents. Thornley’s complaint, filed on behalf of herself and a class, asserted violations of three subsections of BIPA. Clearview removed the case to federal court. Shortly after removal, Thornley voluntarily dismissed the action. Thornley then returned to the Circuit Court of Cook County in May 2020 with a new, significantly narrowed, action against Clearview. The new action alleged only a single violation of BIPA and defined a more modest class.
Clearview again removed the case to the federal court. Thornley then filed a motion to remand to state court, asserting that the violation of § 15(c) that she described was only a “bare procedural violation, divorced from any concrete harm” and thus did not support Article III standing. The district court agreed with Thornley and ordered remand. Clearview then appealed.
The appellate panel began by noting that, as the party that wished the case to be heard in a federal forum, Clearview bore the burden of demonstrating that Thornley and her co-plaintiffs had Article III standing. The panel noted that an important corollary to the rule that injury-in-fact must be both concrete and particularized was that plaintiffs were required to clearly allege facts demonstrating each element of standing. The panel then stated that the district court found that the complaint raised only questions about a general regulatory rule found in BIPA: no one may profit in the specified ways from another person’s biometric identifiers or information.
The panel then stated that BIPA addresses only the regulated entity, the collector or holder of the biometric data, and flatly prohibits for-profit transactions. The panel then determined that Thornley and her co-plaintiffs lacked Article III standing. The panel found that the plaintiffs described only a general, regulatory violation, and not something that was particularized to them and concrete. The panel, therefore, affirmed the decision of the district court.
You can view the full opinion here.
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