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Privacy & Data Security Law

Clearview AI Will Take BIPA Standing Challenge to Supreme Court

Feb. 23, 2021, 8:30 PM

Clearview AI Inc. is asking the Seventh Circuit to postpone the legal effect of its recent decision to allow an Illinois Biometric Information Privacy Act lawsuit to proceed in state court until the Supreme Court has a chance to decide whether it wants to take on the case.

The U.S. Court of Appeals for the Seventh Circuit said in January that Melissa Thornley’s proposed class action should be sent back to Illinois state court, where it had originally been filed. Clearview, which sought to keep the case in federal court, then asked for reconsideration of that ruling, a request the federal appeals court denied.

Thornley’s lawsuit accuses Clearview—which scrapes photos off social media sites for facial recognition purposes—of selling her biometric data to third parties without her permission.

The company plans to argue to the U.S. Supreme Court that Thornley has alleged a concrete and particularized injury that, under Spokeo Inc. v. Robins, should satisfy Article III’s standing requirements and keep the case in federal court, according to its motion to stay the Seventh Circuit’s mandate filed on Monday.

Clearview hasn’t yet filed its petition for review at the U.S. Supreme Court, according to a Tuesday email from Clearview’s counsel.

The Hamburg Commissioner for Data Protection and Freedom of Information said in late January that Clearview’s data processing activities violate the European Union’s General Data Protection Regulation. And in early February, Canadian regulators found that the company’s facial recognition technology amounts to surveillance that violates the privacy rights of Canadians.

Despite these international setbacks, Clearview has gone ahead and filed a patent application for its facial recognition technology with the U.S. Patent and Trademark Office.

According to Clearview’s Monday motion, whether or not allegations of a statutory violation—such as those brought by Thornley under BIPA—necessarily requires the allegation of a concrete and particularized harm “is in need of clarification from the Supreme Court, as lower courts have struggled to identify consistent rules or standards.”

Jenner & Block LLP represents Clearview. Miller Shakman Levine & Feldman LLP; Silver Golub & Teitell LLP; and Kevin M. Forde of Chicago represent the proposed class.

The case is Thornley v. Clearview AI, Inc., 7th Cir., No. 20-03249, motion for stay filed 2/22/21.

To contact the reporter on this story: Porter Wells in Washington at pwells@bloomberglaw.com

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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