On August 27, 2021, Illinois Judge Pamela McLean Meyerson denied Clearview’s motion to dismiss the ACLU’s privacy lawsuit against the company.  Clearview AI is a small company behind the facial-recognition app which helps identify a person with an image search.  The company maintains a database of facial biometric data crawled from millions of websites including popular social media sites like Facebook.  In 2019, over 600 law enforcement agencies were among the clients of Clearview and have disclosed that the identification technology was in use to solve various criminal cases, including murder. 
Last year, the American Civil Liberties Union of Illinois filed a lawsuit against Clearview AI for violating the Biometric Information Privacy Act (“BIPA”).  BIPA is an Illinois state law passed in 2008 that forbids collection of biometric information without affirmative consent.  Per ACLU, Clearview crawled more than 3 billion faceprints without consent or even knowledge of the people in the photographs it collected.  BIPA allows plaintiffs to claim up to $5,000 in damages per violation. 
Clearview attempted to dismiss the lawsuit on its novel first amendment argument against BIPA. It hired Floyd Abrams, a top First Amendment lawyer at Cahill Gordon & Reindel with extensive experience arguing before the Supreme Court.  Clearview’s First Amendment argument relies on the premise that its data collection practice falls under “creation and dissemination of information,” which is protected speech under the First Amendment according to precedents Sorrell v. IMS Health Inc. and accord People v. Austin.  As the information it collects is “publicly available,” Clearview claims that its collection and republication of photographs is protected under the First Amendment. 
While the New York Times described Clearview’s service as “a groundbreaking facial recognition app,”  Clearview calls its service “a search engine.”  As a search engine, Clearview claims the First Amendment privilege of “republication of publicly-available photos openly published on the Internet.”  This argument has previously been claimed by search engines such as Google, Yahoo!, and Microsoft and recognized in the Seventh Circuit.  With such arguments, Clearview won the support of First Amendment Clinic at Duke Law and law professors Eugene Volokh and Jane Bambauer in their brief of amici.  Meanwhile, Electronic Frontier Foundation (EFF) filed an amicus brief in support of ACLU. 
Judge Meyerson denied Clearview’s motion to dismiss stating that “BIPA’s restrictions on Clearview’s First Amendment freedoms are no greater than what’s essential to further Illinois’ interest in protecting its citizens’ privacy and security.”  The judge ruled that BIPA survives the intermediate scrutiny for the First Amendment, and BIPA as a government regulation is “sufficiently justified.”  Judge Meyerson listed several factors in favor of the governmental interest. First, BIPA does not seek to suppress free expression, but targets “the risks it [non-consensual face printing] poses to the subject’s privacy and security.”  Second, BIPA does not prohibit the practice of collection but requires notice and consent.  Third, the “reduced effectiveness” in Clearview’s service due to BIPA cannot exempt the company from compliance with the statute. 
The Clearview controversy indicates that facial recognition technology is already in wide use across a variety of industries today. Public attention on privacy has failed to stop Clearview and its clients, including law enforcement agencies, from making use of existing controversial technology. As we wait for the Illinois court to decide the case on its merits, it seems clear that this early opinion would serve as a deterrent for the wide public use of facial recognition technology for now.