• by Wendy Davis  @wendyndavis, March 15, 2022

Controversial facial-recognition company Clearview AI is asking a federal judge to rule that its current business practices don't violate an Illinois biometric privacy law, because that law doesn't apply to government contractors.

“Clearview’s customers are government agencies,” lawyers for the company write in papers filed Monday with U.S. District Court Judge Sharon Johnson Coleman in the Northern District of Illinois.

Clearview -- which says its facial-recognition search engine is now being used by the Ukrainian government to defend itself against Russia -- adds in its new motion that its database has “been instrumental in helping these government agencies solve heinous crimes, including child rape and child sexual exploitation.”

The outfit is seeking a declaratory judgment that its current operations are exempt from the Illinois Biometric Privacy Act. That law generally requires companies to obtain users' consent before collecting biometric identifiers such as scans of facial geometry. But the measure has an exemption for contractors and agents of state and city agencies.

Clearview reportedly scraped billions of photos from Twitter, Facebook and other social media platforms, used technology to create a faceprint database, and then sold that database to police departments, other agencies and private companies like Macy's.

In 2020, soon after The New York Times reported on Clearview's business practices, the company was sued by U.S. consumers, as well as the Vermont Attorney General. Officials in other countries, including Australia and Canada, also moved against the company.

Several months after the first of those lawsuits was filed, Clearview said court papers that it was cancelling accounts of all non-governmental clients.

The company is now telling Coleman that all “facial vectors” images currently in use were created when Clearview acted as an agent of governmental entities.

Even if Clearview's argument is accepted by Coleman, it appears the company would still face suit over prior practices -- including the alleged deals with Macy's and other private companies.

Last month, Coleman rejected Clearview's motion to dismiss a class-action complaint alleging that the company violated the Illinois privacy law as well as various state laws in California, New York and Virginia -- including measures that give residents the right to control the commercial use of their images.

Clearview had argued to Coleman that the First Amendment protects right to collect and use public photographs that appear online.

Coleman disagreed, writing that even if the photos were public, the “biometric identifiers” gleaned from them are not public information.

The company also contended that the Illinois biometric privacy law is unconstitutional to the extent that it regulates activity occurring outside of the state. In general, only Congress can regulate interstate commerce.

Coleman rejected that argument for now, but suggested she would revisit the question after more evidence had been developed.