Facial Recognition: Clearview-ACLU Settlement Charts a New Path for BIPA and the First Amendment – JD Supra

The closely watched privacy and First Amendment battle between Clearview AI (Clearview) and the American Civil Liberties Union (ACLU) came to a close on May 9, 2022 as the parties announced a settlement and proposed consent decree that would resolve all outstanding issues. ACLU v. Clearview AI, Inc., 2020 CH 04353 (Cir. Ct. Cook City., Ill.) (motion for settlement approval filed May 9, 2022). Clearview has gained prominence and market share in recent years by amassing over three billion facial images from public sources and building a business model premised on digitizing these images and making them available to a range of customer interests and industry sectors. Market demand for this database (the Clearview App) spans law enforcement agencies at the federal and state level, U.S. national security interests, artificial intelligence companies in need of data to develop and enhance facial recognition software and a wide array of other commercial, educational and other uses. Controversy has arisen as to potential surveillance implications and potential abuses of such a database, in the U.S. and around the world.

Concerned about individual privacy interests, as exemplified by the protections afforded biometric information by the Illinois Biometric Privacy Act (BIPA), the ACLU sued Clearview in the Circuit Court of Cook County in 2020, alleging widespread BIPA violations and arguing there is no First Amendment justification for the Clearview business model that would overtake BIPA or exempt the company from BIPAs requirements.

The case has been closely watched and was hard fought from 2020 to 2022. The settlement, which is sure to draw the attention of legislators, regulators, and other courts, provides the following key compromises:

1. A Private Entity Ban, in which Clearview has agreed to a nationwide injunction barring access to the Clearview App by: (i) any private entity or private individuals unless such access is compliant with BIPA; or (ii) any governmental employee not acting in his or her official capacity.

2. An Illinois State Ban, in which Clearview has agreed to a five-year injunction against access to the Clearview App: (i) by Illinois state and local agencies and their contractors; (ii) by any private entity located in Illinois even if permissible under BIPA; and (iii) by employees of Illinois state and local agencies and their contractors, whether in their individual or official capacities.

3. A Savings Clause, in which the parties agreed there will be no restrictions on Clearviews ability to work with or contract with: (i) third-parties outside Illinois; (ii) federal agencies whether in Illinois or outside Illinois; and (iii) state or local government agencies outside Illinois.

4. An Opt-Out Program for Illinois residents, by which an Illinois resident will be allowed to submit a photo to Clearview and compel Clearview, on a best-efforts basis, to block search results and prevent any future collection of facial recognition data or images of such person.

5. Illinois Photo Screening, in which Clearview has agreed, on a best-efforts basis, not to access or use any of its existing Illinois-based facial recognition data.

This continues to be a case to watch, as the parties move forward to seek court approval. Key takeaways include the following:

1. No Compensatory Relief Almost no money will change hands. Clearview will pay an agreed $50,000 to advertise the Opt-Out program and $250,000 in attorneys fees. The large number of BIPA class actions against Clearview, currently assigned to the Northern District of Illinois by the Judicial Panel on Multidistrict Litigation, are not part of the settlement and will proceed, as will the large number of class actions and other cases in state court in Illinois.

2. Policy by Consent Decree The Clearview-ACLU settlement, if approved by the court, will govern large areas of facial recognition and privacy policy in Illinois and across the U.S., both because of the dominant market position occupied by Clearview and the types of compromises hammered out by the parties in the proposed consent decree. While ongoing regulatory and legislative efforts will continue, in Illinois and around the country, the implementation of this consent decree is sure to be closely watched by federal and state policy makers as well as litigators in state attorney general offices who may wish to seek comparable relief in their states.

3. BIPA Compliance There is still no substitute for robust BIPA compliance efforts as the most cost-effective strategy to reduce or eliminate BIPA exposure in Illinois or other courts, on either an individual or class-wide basis. It bears emphasis that the largest public BIPA settlement to date was reached in the In re Facebook Biometric Information Privacy Litigation case in California in 2020 (for a class-wide settlement of $650,000,000). BIPA is still a significant litigation exposure for many companies, and the recent Clearview-ACLU settlement will not necessarily reduce or extinguish that exposure.

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Facial Recognition: Clearview-ACLU Settlement Charts a New Path for BIPA and the First Amendment - JD Supra