Clearview AI loses bid to dismiss biometric privacy suit brought by Vermont AG

facial-recognition-database

A biometric data privacy lawsuit brought by Vermont Attorney General TJ Donovan against Clearview AI will move forward after a Vermont Superior Court rejected the company’s motion to dismiss the case. Clearview had argued its actions are protected by the First Amendment and “near absolute immunity” bestowed by Section 230 of the Communications Decency Act, and also that the State’s claims were unconstitutionally vague and lack standing.

In the ruling,  Judge Helen M. Toor writes that the claim Clearview deceived Vermonters about being able to remove their images from the company’s facial recognition database is not protected by the First Amendment. She also ruled that Clearview’s “non-expressive speech,” such as poor security measures for biometric data, are not protected. Section 230 of the CDA does not apply to Clearview either, according to Toor, as the claim involves the collection of data, not its distribution.

The State’s allegations were also found to be adequate to support an unfairness claim under the Consumer Protection Act, and that by exposing those in the state to unwanted surveillance and marketing its face biometrics product to law enforcement, Clearview may have caused substantial injury.

The court did not entirely side with Vermont, however, striking down one of six claims of deception, and an argument that Clearview violated a Data Broker Law, as “fraud” in that case refers to a traditional sense, rather than “consumer fraud,” and Clearview is registered in the state as a data broker.

“Clearview’s actions in acquiring the photos is akin to someone walking into a store and surreptitiously stealing an item. In that example, the person’s action might be larceny and it might Violate the store’s posted rules, but it is not fraud because it does not involve a misrepresentation,” Toor writes.

Clearview CEO Hoan Ton-That has called the company’s place in biometric privacy debates “an honor”, and the company is currently attempting to have at least some of the numerous suits filed against it consolidated.

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