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Clearview says biometric privacy injunction unconstitutional, could force its closure

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Clearview AI says in a motion filed to oppose a plaintiff’s motion for injunctive relief in its biometric data privacy suit that it may be forced to suspend its operations across the U.S.

The company argues that plaintiffs failed to prove any of the elements necessary for an injunction, after the company “voluntarily changed its business practices over the past year.”

The plaintiffs’ filing acknowledges that injunctive relief orders have never been issued under Illinois’ Biometric Information Privacy Act (BIPA). They further alleged the company shows its practices had not meaningfully changed with its opt-out process, which requires users to first opt-in to biometric processing, and a patent depicting a commercial application.

Clearview claims that it is exempt from BIPA as a government subcontractor, though the status of subcontractors has likewise never been ruled on in court. Additionally, holding Clearview to BIPA would violate extraterritoriality law in Illinois and the U.S. Constitution’s dormant Commerce Clause (regulating interstate business relations) and its First Amendment (which protects freedom of expression). If any of these arguments are accepted by the court, it would undermine the plaintiffs’ claim that any violation of BIPA occurred, Clearview says.

As a facial recognition provider only to government agencies, with no practice of selling biometric information, redistributing it or otherwise profiting from it, plaintiffs have also not shown that any harm would occur without the injunction, the company argues.

Biometric data collection was ruled to constitute a harm to individuals’ property interests over three years ago.

For Clearview, however, an injunction could force it to cease operations, “depending on the relief fashioned,” which the company argues would also harm public interest.

This is because Clearview does not associate the images it scrapes for its facial recognition database with an identity, and therefore cannot determine if individuals are Illinois residents, and therefore it is likely it would have to stop using its entire database.

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