Earlier this week we wrote about the NJ AG’s ban of the Clearview AI’s facial recognition app, which is marketed to law enforcement agencies to help stop criminals. We hypothesized about a BIPA suit against Clearview AI and whether, for example, Facebook’s settlement of a BIPA class action would exhaust remedies, at least with respect to Clearview’s biometric information that was scraped from Facebook. We concluded that while there would likely not be exhaustion, based on the plain language of the statute (i.e., each unlawful collection of biometric information/identifiers would need written consent), we raised the issue of whether Clearview could argue that it is exempt under BIPA because Section 25(e) provides: “Nothing in this Act shall be construed to apply to a contractor, subcontractor, or agent of a State agency or local unit of government when working for that State or local unit of government.”
We may not need to hypothesize any longer as to whether such claims will be filed. Two days after our blog post, Anthony Hall filed a class action lawsuit against Clearview, alleging violation of BIPA. The Complaint also claims violation of the Illinois Consumer Fraud and Deceptive Practices Act (“ICFA”) and civil conversion under Illinois common
We look forward to tracking this suit and seeing how the BIPA action plays out. This lawsuit is also consistent with the prediction of ours, and others, that BIPA lawsuits will be on the rise in 2020, following the Facebook $500 million BIPA settlement.