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 plaintiffs’ 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.