On May 9, Clearview AI (Clearview) and the American Civil Liberties Union (ACLU) reached a settlement whereby Clearview agreed to a nationwide injunction blocking many private entities, and some public entities, from accessing its database of face prints. The settlement highlights the force of the Illinois Biometric Information Privacy Act (BIPA) and demonstrates how state privacy laws can impact privacy on a nationwide scale.

The settlement comes after a suit filed by the ACLU and other advocacy groups against Clearview in Cook County Circuit Court in May 2020. The plaintiffs alleged Clearview’s facial recognition technology violated biometric privacy rights, including Section 15(b) of BIPA, on a “staggering scale” by capturing more than three billion faceprints without consent and then selling access to the faceprints to various public and private entities. According to the plaintiffs, the lawsuit was brought keeping in mind especially “vulnerable communities,” including sex workers, sexual assault survivors, and undocumented immigrants. The plaintiffs requested an injunction ordering Clearview to (1) destroy all biometric identifiers it collected and stored, (2) comply with BIPA and future consent requirements, and (3) pay the plaintiffs’ attorneys’ fees. In response, Clearview filed a motion to dismiss in which it argued that BIPA violated the company’s First Amendment rights by restricting the company’s “creation and dissemination of information,” which qualifies as speech. The court denied Clearview’s motion, noting that “BIPA’s restrictions on Clearview’s First Amendment freedoms are no greater than what is essential to further Illinois’ interest in protecting its citizens’ privacy and security.”

In addition to requiring Clearview to pay $250,000 in attorneys’ fees and costs to the plaintiffs’ counsel, the settlement includes the following key provisions:

• A nationwide private entity and individual ban that provides a nationwide injunction barring access to the Clearview App by (1) any private entity or private individuals unless such access is compliant with BIPA; or (2) any governmental employee not acting in his or her official capacity.

• An Illinois state ban that provides a five-year injunction against access to the Clearview App by (1) Illinois state and local agencies and their contractors; (2) private entities located in Illinois even if permissible under BIPA; and (3) employees of Illinois state and local agencies and their contractors, whether in their individual or official capacities.

• The deletion of facial vectors whereby Clearview agrees to delete all facial vectors in the Clearview App that existed before Clearview ceased providing or selling access to the App to private individuals and entities (the Old Facial Vectors). This will not preclude Clearview from creating or re-creating facial vectors as long as it does so (1) under an exemption to BIPA or (2) in compliance with BIPA.

• The creation of 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 that person.

Despite this settlement, there are still numerous lawsuits pending against Clearview in state and federal courts over its practice of “scraping” internet photos to collect biometric facial data to build and maintain its facial recognition database. Troutman Pepper will continue to monitor these lawsuits and others that deal with BIPA and other state biometrics laws.