Biometric privacy lawsuit decisions: Clearview AI loses, Shutterfly and Southwest win, TikTok in trouble

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A biometric data privacy suit against Clearview AI will move forward, and in the District Court for Northern Illinois, as requested by the plaintiff, after a pair of rulings by Judge Sharon Johnson Coleman reported by Law Street Media.

There are two separate BIPA cases currently ongoing against Clearview, known by their plaintiffs Hall and Mutnick. Mutnick filed a motion for a preliminary injunction several months into the case, and says in a clarified motion for reassignment that it is seeking to have Hall v. Clearview AI, Inc., et al. moved to Illinois, and that plaintiff Hall agrees with the motion.

Clearview had filed a motion to stay the proceedings pending decisions on its motion to dismiss based on personal jurisdiction, and to move the case to the Southern District of New York, where the company is based. In New York, Chief Justice Colleen McMahon said that because the suit applies an Illinois state law and includes class members based on their Illinois residence at the time of the alleged violation, it is not clear that the cases belong in New York district court.

Staying the action while the jurisdiction and transfer issues are decided would not save judicial resources, particularly compared to the cost of delaying injunctive relief or any prejudice that might come from a delay, the Northern District of Illinois court ruled. Instead, the related case in the Southern District of New York will be monitored while Mutnick’s case moves forward. Clearview’s request to consolidate the claims is considered premature by the court, as the New York case may or may not be transferred to Illinois.

Mutnick has also asked that the company be forced to delete all data on Illinois residents, and Clearview has since blocked organizations in Illinois, along with all private entities, from using its app.

Claims against Shutterfly to go to arbitration

Plaintiffs in a suit against Shutterfly will be forced to arbitrate their claim against the company under BIPA, after an Illinois federal judge ruled that Shutterfly’s amendment to its terms of use after the users had consented to an earlier version falls retroactively under that consent.

Security Boulevard writes that though the plaintiff accepted terms of use in 2014, and Shutterfly’s terms were amended to include an arbitration clause in 2015, the arbitration clause is binding, because the original Shutterfly terms did include a clause that they could be updated. The company sent an email to users after the BIPA suit was filed informing them that their claims would be subject to arbitration if they did not close their account within a month.

The plaintiff argued that because the change was unilateral, she was not informed of it by the company, and retroactive arbitration clauses are unenforceable, the contract itself or the arbitration agreement specifically is invalid.

The court has rejected that argument, however, on grounds that the agreement by users that Shutterfly could update its terms blocks the unilateral change claim, that that consent constitutes a valid arbitration agreement, that the email from Shutterfly was therefore valid, and that no notice of term changes is required of Shutterfly other than posting to the Terms of Use on its website.

TikTok suits pile up

Another lawsuit has been filed against TikTok on grounds that it violated Illinois’ biometric privacy law, the Chicago Tribune reports.

A Lawsuit was filed in the a federal court in California in early May by the parents or guardians of four minors living in Illinois, and is just one of several suits filed in California and Illinois against the company, according to the Tribune.

The suit estimates tens of thousands of users may be affected by TikTok’s use of facial recognition software to apply appearance filters to users faces and evaluate videos for quality and user age, without satisfying BIPA’s informed consent requirements.

TikTok general counsel said in a statement that the company will not comment publicly on the case.

Meanwhile another, potentially more damaging suit has been filed by the guardian of a preteen in Los Angeles, alleging TikTok collects and stores biometric data without consent in violation of the California Consumer Privacy Act (CCPA), as reported by NBC. The suit refers to concerns that ByteDance, which is Chinese, may pass user data to China’s government, according to the report.

A settlement agreement under which the app’s parent company ByteDance would pay $1.1 million for alleged violations of internet privacy laws is facing an objection in court, the Tribune notes, and TikTok agreed to pay a $5.7 million fine levied by the Federal Trade Commission for violating children’s privacy in early 2019.

Southwest wins dismissal

Claims made by three employees of Southwest Airlines under BIPA must proceed before a federal labour board, rather than in court, Reuters reports.

The Railway Labor Act requires that the three employees, who are part of a union, must pursue their claims before an adjustment board, while a fourth, non-union employee, must take claims to arbitration based on an agreement he signed with the airline.

Recent decisions favor defendants

A bulletin from Taft Law characterizes several recent BIPA decisions as reversing a previous trend of favorable interpretations for plaintiffs.

A decision that biometric time and attendance company Lathem Time Co. is not liable for alleged violations by its customer indicates that for jurisdiction to apply in BIPA claims, an entity must have a physical presence in the state or market its offerings specifically to Illinois customers.

A decision dismissing claims against medication dispensing system vendor Becton shows limits to what entities are required to provide notice, based on the definition of “possession” of biometric data.

Exemptions under healthcare law and the dependence of insurance entitlements on the specific language contained in a defendant’s policy are also examined in the article.

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