Frequent readers of CPW will recall our coverage of the Clearview MDL currently pending in the Northern District of Illinois. Plaintiffs, seeking to represent a class of Illinois residents, have filed a class action lawsuit claiming that the defendant, Clearview AI, Inc. has collected the biometric information of Illinois residents and sold that information in a database without the residents’ consent.
During the MDL proceedings, Clearview has represented to the court that it voluntarily changed its business practices to avoid including data from Illinois residents in its database, and to avoid providing its services to non-governmental customers. Plaintiffs, however, claim that these representations are either inaccurate or misleading, based primarily on Clearview’s recent patent application that would permit it to use its accumulated biometric information in connection with background searches on potential business or personal connections. Based on this application, along with other evidence that plaintiffs claim shows Clearview’s representations are either inaccurate or dishonest, plaintiffs have a motion asking the court to preliminarily enjoin Clearview from possessing, using, or storing the biometric information of any Illinois resident for any purpose without first obtaining clear written consent under Illinois’ Biometric Information Privacy Act (“BIPA”), and to create certain protections and policies regarding the possession, storing, and use of that information.
This motion is interesting for a few reasons: first, the basis for the injunction isn’t the actions that led the plaintiffs to bring the suit in the first place; the basis is actions the defendant might possibly take in the future that have yet to impact Illinois residents. Second, the motion effectively asks the court to weigh the credibility of Clearview’s representations regarding its efforts to cease harm to the plaintiffs. And third, the motion doesn’t ask that the court enjoin the specific act that’s the basis for the request—it asks the court to enjoin global aspects of Clearview’s operations.
We’ll keep an eye on this motion, as the court’s decision could have far-reaching impact on defendants in privacy litigation who continue to pursue other ventures with privacy implications while the litigation is ongoing.