• by Wendy Davis  @wendyndavis, April 7, 2023

Macy's plans to argue that an Illinois biometric privacy law is unconstitutional on the theory that the law subjects violators to “grossly excessive damages,” the company revealed in court papers.

The Illinois law imposes “an unconstitutional penalty,” Macy's writes in a proposed revised answer to a class-action privacy complaint over the alleged purchase of a facial-recognition database from Clearview AI.

On Wednesday, U.S. District Court Judge Sharon Johnson Coleman in the Northern District of Illinois allowed Macy's to include that argument in its revised answer to the lawsuit.

The department store's argument comes in a complaint initially filed in 2020 against Clearview and amended in 2021 to include Clearview's alleged clients, including Macy's. The retailer drew on the faceprint database as part of an initiative to combat shoplifting, according to the complaint.

Clearview came to public attention in January of 2020, when The New York Times reported that the company scraped billions of photos from Twitter, Facebook and other companies, used technology to create a faceprint database, then sold access to that database to police departments across the country.

Among other claims, the complaint alleges that Macy's violated the Illinois Biometric Information Privacy Act, which requires companies to obtain state residents' consent before collecting and storing scans of their facial geometry. That law provides for damages of up to $5,000.

In February, the Illinois Supreme Court said companies that run afoul of that law can be sued for up to $5,000 for each separate violation. Before that decision came down, companies argued they were only liable for the first time they scanned someone's biometric data.

Macy's says in its amended answer that the potentially high financial penalties make the Illinois privacy statute unconstitutional.

The law “imposes grossly excessive damages wholly unrelated to any actual harm, while at the same time making damages discretionary without any basis for how courts and juries should weigh this discretion,” Macy's writes. “This leads to an arbitrary assessment of damages.”