Facial recognition tech company challenges privacy class actions
Clearview AI, which provides photographic information to law enforcement, faces nearly a dozen privacy class-action lawsuits in New York and Illinois.
A New York-based tech startup that claims to have amassed a collection of 3 billion photographic images is tussling with two federal judges overseeing nearly a dozen privacy lawsuits in New York and Illinois, home to the strictest biometrics law in the country.
Since a January 18, 2020, story in The New York Times unveiled the business model of Clearview AI Inc., which uses facial recognition to provide photographic information, primarily to law enforcement, lawyers have filed 11 class actions and Vermont Attorney General TJ Donovan and the ACLU, represented by Jay Edelson of Edelson PC, have also filed lawsuits.
Many of the class actions cite the Biometric Information Privacy Act, a statute in Illinois that prompted Facebook Inc. to pay a $650 million settlement over its “tag suggestions” feature and a recent spate of lawsuits against TikTok the MDL panel sent to Illinois last month.
Clearview AI is facing litigation in Illinois and New York, where two federal judges have resisted handing over their cases to one another.
Two states, one precedent creates potential conflict in ruling
Last month, Clearview AI, in a motion before the U.S. Judicial Panel on Multidistrict Litigation, sought to coordinate all the cases in New York to avoid duplicative and possibly conflicting court decisions.
“Two federal judges — Chief Judge Colleen McMahon in the Southern District of New York and Judge Sharon Coleman in the Northern District of Illinois — have ordered the parties to proceed with the actions both in New York and Illinois concurrently,” wrote Clearview AI attorney Lee Wolosky, in the Aug. 18 motion.
“Without centralization,” he continued, “Chief Judge McMahon and Judge Coleman would need to separately resolve the motions addressing identical factual and legal issues, which is a waste of judicial and party resources, and creates a significant risk of inconsistent rulings, especially given the novelties and complexities of data privacy law generally and facial-recognition technology in particular.”
Recently, plaintiff lawyers in five class actions in New York supported Clearview AI’s transfer, citing a “growing number of non-Illinois residents pursuing non-Illinois state claims against Clearview.”
“That’s where our case is filed and where the cases should be consolidated given the witnesses and actions that take place there,” said James Pizzirusso, of Hausfeld, who filed a nationwide class action in New York that involves broader privacy claims, as well as BIPA.
“The main argument for the cases in Illinois is this is a BIPA case, and Illinois cases are best suited to BIPA,” he said. Facebook reached its $650 million settlement; however, in California federal court. “Any court, we think, can handle these cases.”
Allegations against Clearview AI
Lawyers in five other matters note the progress of the cases in Illinois, where Coleman issued an Aug. 12 ruling denying dismissal based on jurisdictional challenges, noting that Clearview AI worked with numerous Illinois entities, including the Chicago Police Department. Plaintiffs attorneys also have a pending motion for preliminary injunction before Coleman.
The venue fight comes as Clearview AI has come under increased scrutiny, with U.S. Senator Edward Markey, D-Massachusetts, and the U.S. House of Representatives’ Committee on Science, Space, and Technology raising concerns about privacy and recent breaches in letters.
The lawsuits allege that Clearview AI scrapes internet sites for publicly available images without the knowledge or consent of the individuals in the photographs and, at times, in violation of the rules of some social media sites, then sells access to the information to not just law enforcement but to retailers. Many of the cases also name Clearview AI founder and CEO Hoan Ton-That and Richard Schwartz, the president, as defendants.
In court documents, Clearview AI has indicated it plans to argue a First Amendment defense, noting that the photos are publicly available and has on its legal team Cahill Gordon & Reindel’s Floyd Abrams and Joel Kurtzberg. The team also includes Tor Ekeland, an attorney in Brooklyn, New York, who specializes in the federal Computer Fraud and Abuse Act.
“Clearview has submitted to a multidistrict judicial panel our position that the cases in New York and Illinois should be pre-tried before one court, not some in New York and some in Illinois, and that the venue for those should be in New York,” said Cahill Gordon & Reindel’s Floyd Abrams.
Clearview AI responds
In response to the allegations in the lawsuits, Abrams said: “As for allegations of privacy violations, we think the law is quite clear that if somebody puts a picture on the Internet of him or herself and does not take the steps that are available to keep it private, that it is public, by its nature, and, as a matter of law, that therefore there is no valid privacy claim that could be asserted by those people or by whatever states have passed legislation in this area.”
Cases filed initially in California and Virginia ended up in New York. On April 21, lawyers at Chicago’s Loevy & Loevy, who were named last month as lead counsel in the Illinois cases, attempted to intervene to send the New York cases to Illinois. In a May 29 order, McMahon concluded Loevy & Loevy’s client, David Mutnick, had no standing in New York, which is the “primary locus of the disputes.”
“The interest that Mutnick is really seeking to protect is an interest in controlling the fate of, and the fees to be earned in several class actions that would, were they all in the same court, be consolidated and proceed under the leadership of one class representative’s lawyer (I am under no illusion that these cases are anything other than attorney-driven class actions),” she wrote.
“He is using intervention as a vehicle to fight for control of what he anticipates will be a hotly contested lawsuit that will test the limits of a new and untried body of law — and assuming all of these cases end up in a single district (they may or may not), his lawyer is fighting for the right to be lead counsel.”
Case dismissal
Scott Drury, founder of Loevy & Loevy, did not respond to a request for comment.
In her dismissal order, Coleman also refused Clearview AI’s request to transfer the Illinois cases to New York, noting that Illinois courts are more familiar with BIPA and have a greater interest in protecting the privacy interests of Illinois residents.
Clearview’s other factors, she wrote, are unpersuasive.
“Under the circumstances,” she wrote, “the above mentioned-convenience factors do not weigh in favor of either forum in light of modern electronic discovery practices, especially now during the COVID-19 pandemic where depositions and court hearings are done remotely via video and audio conferencing.”
Both judges have stayed the cases, pending a decision from the MDL panel, which is unlikely to hear the request until its Dec. 3 hearing.
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