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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 1 of 18 PageID #:466
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`DAVID MUTNICK, for himself and others
`similarly situated,
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`
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`v.
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`CLEARVIEW AI, INC.; HOAN TON-
`THAT; RICHARD SCHWARTZ; and
`CDW GOVERNMENT LLC,
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`
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`Plaintiff,
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`Defendants.
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`
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`Case No. 20-cv-512
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`Hon. Sharon Johnson Coleman
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`CLEARVIEW DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO
`PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 2 of 18 PageID #:467
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`INTRODUCTION
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`Plaintiff waited nearly three months into this litigation—until a contest for lead class
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`counsel was underway—before asserting the need to stop some ongoing and imminent harm, and
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`to ask the Court to do something that no court appears to have done before: Issue a preliminary
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`injunction pursuant to the Illinois Biometric Information Privacy Act (“BIPA”). Plaintiff’s motion
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`(ECF Nos. 31‒32, 39) (the “Motion”) gives no reason for that to happen for the first time here.
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`The Motion should be denied.1
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`Plaintiff’s Motion fails to address numerous threshold issues of law.
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`First, for the reasons set forth in their motion to dismiss (see ECF Nos. 45‒46), Clearview
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`AI, Inc. and Messrs. Hoan Ton-That and Richard Schwartz (together, the “Clearview Defendants”)
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`are not subject to personal jurisdiction here. This fact alone is fatal to Plaintiff’s Motion.
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`Second, the relief Plaintiff seeks has been mooted. Without admitting that BIPA applies
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`to it (and for the reasons discussed below, it does not) Clearview has taken and is continuing to
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`take comprehensive steps to prevent the collection of facial vectors from photos associated with
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`Illinois, and to prohibit the searching of existing photos associated with Illinois. Moreover,
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`Clearview has taken steps to secure and implement limits regarding the retention of any Illinois
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`photos. Clearview is terminating access rights to its app for all account holders based in Illinois
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`and is terminating the accounts of any non-law enforcement or government entity. In short, each
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`aspect of the requested relief has been mooted. Significantly, Plaintiff does not seriously contend
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`otherwise.2
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`1 Plaintiff’s Motion refers only to claims under BIPA. To the extent that Plaintiff asserts he is
`entitled to an injunction because of any of his other claims, the Clearview Defendants reserve the
`right to seek leave to submit briefing addressing those claims.
`2 See Declaration of Lee Wolosky (“Wolosky Decl.”), Exs. 1-3.
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`1
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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 3 of 18 PageID #:468
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`Third, BIPA does not apply to Clearview. BIPA cannot reach a defendant’s conduct—like
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`that here—occurring outside of Illinois. If BIPA were applied in an extraterritorial fashion, as
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`Plaintiff demands, it would violate the dormant Commerce Clause. And finally, Plaintiff’s
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`allegation that Clearview is acting as an “agent” of law enforcement, Mutnick FAC ¶ 37, and with
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`“state actors,” id. ¶ 38, precludes BIPA’s application here pursuant to an express exemption.
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`Fourth, even if the Court were to conclude that it has jurisdiction, that the Motion is not
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`moot, and that BIPA applies to Clearview, Plaintiff cannot show that he has a likelihood of success
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`under BIPA.
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`Finally, even assuming the Clearview Defendants were subject to jurisdiction in Illinois,
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`the Motion had not been mooted by Clearview’s actions, BIPA applied to Clearview, and Plaintiff
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`could demonstrate a likelihood of success on the merits, the Motion should still be denied. Given
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`the availability of statutory damages, Plaintiff cannot meet his burden of showing an inadequate
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`remedy at law. The equities also disfavor an injunction. To take any additional steps beyond those
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`already taken by Clearview would effectively put Clearview out of business. Conversely, in light
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`of the actions already taken by Clearview, Plaintiff stands to gain little more from an injunction.
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`For these reasons and those below, the Motion should be denied.
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`BACKGROUND
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`Clearview AI, Inc.
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`Hoan Ton-That and Richard Schwartz, both New York residents, co-founded Clearview.
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`They respectively manage information technology and sales for the company, and Ton-That also
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`serves as the company’s chief executive officer. ECF No. 46-7, ¶ 1; ECF No. 46-2, ¶ 1.
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`Clearview is a startup that collects publicly-available images on the internet and organizes
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`them into a searchable database, which Clearview’s licensed users can then search. ECF No. 46-
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`2
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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 4 of 18 PageID #:469
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`7, ¶ 6; Declaration of Thomas Mulcaire (“Mulcaire Decl.”) ¶ 3. Clearview only offers an online
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`app through which users can search images. Mulcaire Decl. ¶ 3. Clearview’s technology searches
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`the “open web” and public sources for image files, and downloads the files and webpage URLs
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`into a database. Id. ¶¶ 4, 9. The images that Clearview accesses are available to anyone with an
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`internet connection. Id. ¶ 4.
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`Clearview has never experienced a data breach related to personal information, and it
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`implements reasonable security safeguards for its data. Id. ¶¶ 12‒14. Clearview does not sell,
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`lease, or disseminate any biometric information to its customers. Id. ¶ 10.
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`Voluntary Steps Taken by Clearview
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`As part of an ongoing business review commenced prior to the Motion, Clearview has
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`recently and voluntarily changed its business practices to avoid including data from Illinois
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`residents and to avoid transacting with non-governmental customers anywhere. Specifically,
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`Clearview is cancelling the accounts of every customer who was not either associated with law
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`enforcement or some other federal, state, or local government department, office, or agency.
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`Clearview is also cancelling all accounts belonging to any entity based in Illinois. Id. ¶ 16. All
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`photos in Clearview’s database that were geolocated in Illinois have been blocked from being
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`searched through Clearview’s app. Id. ¶ 17. Going forward, Clearview has constructed a
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`“geofence” around Illinois, and will not collect facial vectors from images that contain metadata
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`associating them with Illinois. Id. ¶¶ 21‒24. Clearview will not collect facial vectors from images
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`stored on servers that are displaying Illinois IP addresses or websites with URLs containing
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`keywords such as “Chicago” or “Illinois.” Id. ¶ 23. Clearview is also implementing an opt-out
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`mechanism to exclude photos from Clearview’s database. Id. ¶ 25. Clearview’s terms of use
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`require users of the Clearview app to, among other things, agree to only use the app for law
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`3
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`enforcement purposes and to not upload photos of Illinois residents. Id. ¶¶ 11, 20. To the extent
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`that a user nonetheless tries to upload a photo with metadata associating it with Illinois, Clearview
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`will not initiate a search with that image or generate a face vector. Id. ¶ 19.
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`Procedural History
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`Plaintiff filed this putative class action on January 22, 2020. ECF No. 1. On April 8, 2020
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`Mutnick filed this Motion. ECF Nos. 31‒32, 39. Mutnick’s delayed timing suggests that he was
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`not concerned about imminent harm, but rather about positioning himself to be appointed lead
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`counsel in this litigation. Indeed, one day after Mutnick filed the Motion, plaintiffs’ lawyers in
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`New York moved to be appointed interim lead counsel. See Calderon v. Clearview AI, Inc., No.
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`20-cv-01296 (S.D.N.Y.), ECF No. 17. Mutnick then attempted to get plaintiffs in New York to
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`refile their cases in Illinois, but, not succeeding, moved to intervene and to dismiss the New York
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`cases, explicitly arguing that his case was further along because of his belated motion for
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`preliminary injunction. See, e.g., McPherson v. Clearview AI, Inc., No. 20-cv-03053 (S.D.N.Y.),
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`ECF No. 13, at 11‒12. The Clearview Defendants subsequently moved to dismiss for lack of
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`personal jurisdiction, or for a transfer to the Southern District of New York. ECF Nos. 45‒46.
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`In advance of submitting this brief, counsel for Clearview contacted counsel for Plaintiff
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`and explained the steps that Clearview is in the process of taking and that moot this Motion.
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`Plaintiff’s Counsel refused to withdraw his Motion. Wolosky Decl. ¶ 3. Plaintiff’s insistence on
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`proceeding further reveals that the Motion is little more than a litigation ploy, made in an effort to
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`advance a claim to lead counsel, rather than a genuine request for meritorious relief.
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`ARGUMENT
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`The Court should deny Plaintiff’s Motion because Clearview is not subject to jurisdiction
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`in Illinois, because the Motion is moot, because BIPA does not apply to Clearview, and because
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`4
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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 6 of 18 PageID #:471
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`Plaintiff has not met his burden for obtaining an injunction.
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`I. Legal Standard
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`“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be
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`granted unless the movant, by a clear showing, carries the burden of persuasion.” Goodman v. Ill.
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`Dep’t of Fin. & Prof’l Regulation, 430 F.3d 432, 437 (7th Cir. 2005) (quoting Mazurek v.
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`Armstrong, 520 U.S. 968, 972 (1997) (original emphasis)). To justify this relief, Plaintiff has the
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`burden of showing that: (1) he has a reasonable likelihood of success on the merits; (2) no adequate
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`remedy at law exists; (3) he will suffer irreparable harm, which, absent injunctive relief, outweighs
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`the irreparable harm Clearview will suffer if the injunction is granted; and (4) the requested
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`injunction will not harm the public interest. Goodman, 430 F.3d at 437. Not once in a reported
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`case has a plaintiff suing under BIPA met this burden, and there is no reason to make this case the
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`first one.
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`II. The Motion for a Preliminary Injunction Should Not Be Ruled upon Until
`Defendants’ Jurisdictional Defenses Are Addressed
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`Despite knowing that Clearview is a New York company and that the individual defendants
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`
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`are New York residents, Plaintiff’s Motion fails to address the threshold question of personal
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`jurisdiction. For the reasons given in Clearview’s Motion to Dismiss, which are adopted and
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`incorporated here, the Clearview Defendants are not subject to personal jurisdiction in Illinois.
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`ECF No. 46. As set forth in those filings, the Clearview Defendants are not subject to general
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`jurisdiction in Illinois because Clearview as a business is not “at home” in Illinois, and because
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`neither individual defendant has any relationship to Illinois. Id. at 11‒12. Specific jurisdiction is
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`also lacking because Plaintiff has made zero jurisdictional allegations related to the individual
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`defendants’ conduct in Illinois and the allegations as to Clearview are all focused on the acts of
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`third parties or Plaintiff, none of which are sufficient to subject Clearview to jurisdiction. Id. at
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`5
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`12‒17. Plaintiff also fails to allege suit-related contacts sufficient to support specific jurisdiction;
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`the alleged contracts between Clearview and Illinois entities are untethered to any alleged injury
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`suffered by Plaintiff under BIPA. Id. at 16‒17. As a result, the Clearview Defendants are not
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`subject to personal jurisdiction in Illinois and cannot be enjoined by a court in Illinois. Advanced
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`Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. 2014), as
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`corrected (May 12, 2014) (holding that for a “preliminary injunction to be valid,” the issuing court
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`must “have personal jurisdiction over the defendant”).
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`III. Clearview Has Voluntarily Rendered the Motion Moot
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`Even if the Clearview Defendants were subject to personal jurisdiction, Plaintiff’s Motion
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`should still be denied because it is moot. Clearview addressed each and every one of Plaintiff’s
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`requested areas of relief. There is no need to impose an injunction because Clearview will maintain
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`the revised practices until the relevant legal issues are resolved.
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`Without admitting that BIPA applies to it, Clearview has taken steps to avoid collecting
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`information that originates in or is associated with Illinois (the “Illinois Information”). Mulcaire
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`Decl. ¶¶ 15‒22. Specifically, Clearview will no longer run facial vectors on images from servers
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`in Illinois and has adjusted its collection methods to avoid running facial vectors on photos with
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`metadata associating the photo with Illinois. Id. ¶¶ 21‒22. Clearview will also be offering Illinois
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`residents the ability to visit Clearview’s website and opt out of the use of their facial vectors or
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`images. Id. ¶ 23. Clearview has blocked access to Illinois Information until the conclusion of
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`these litigations. In the meantime, Clearview is taking measures to secure the Illinois Information.
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`Id. ¶¶ 16‒17.
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`Clearview is also cancelling all contracts with non-law enforcement or government entities
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`anywhere, as well as all contracts with all Illinois-based entities. Id. ¶ 15. Clearview’s terms of
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`6
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`use require app users to agree to a series of restrictions and permissible purposes for app use, and
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`prohibits users from uploading images of Illinois residents. Id. ¶ 18. Plaintiff has admitted that
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`these changes will benefit the class. See Calderon, ECF No. 41, at 7 (acknowledging Clearview’s
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`changes are “to the benefit of Class Members”). Because Clearview has already addressed the
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`relief being sought, the Motion should be denied. See Kessler v. Pass, No. 18-cv-530, 2018 WL
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`5307821, at *1 (S.D. Ill. Oct. 26, 2018) (injunctions sought for conduct that defendants have
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`already voluntarily provided “serve no purpose” and should not be granted); White v. Rozum, No.
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`06-cv-244, 2007 WL 218709, at *2 (W.D. Pa. Jan. 25, 2007) (“The Court sees no point in enjoining
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`Defendants to do what they have already done[.]”).
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`IV.
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`Plaintiff Has Not Demonstrated That He Can Succeed on the Merits
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`Even if the Clearview Defendants were subject to jurisdiction, and even if the Motion were
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`not moot, Plaintiff cannot show that he can succeed on the merits of his claim.3
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`A. Clearview Is Not Subject to BIPA
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`Nowhere does Plaintiff’s Motion address the threshold issue of whether BIPA applies to
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`Clearview. Because BIPA does not apply to Clearview, Plaintiff’s Motion fails.
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`1. BIPA Has No Extraterritorial Effect
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`BIPA does not apply to Clearview for the simple reason that the alleged wrongful conduct
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`occurred primarily and substantially in New York, not Illinois. As Plaintiff has admitted
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`elsewhere, BIPA does not have any extraterritorial application. See Calderon, ECF No. 41, at 6,
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`13; see also Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 852‒54, 217 Ill. 2d 100,
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`3 If the Court concludes that the Clearview Defendants are subject to personal jurisdiction in
`Illinois, they will be filing a motion to dismiss pursuant to, among other things, Fed. R. Civ. P.
`12(b)(6). The Clearview Defendants reserve the right to raise additional bases for dismissal in that
`motion than those referenced herein.
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`7
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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 9 of 18 PageID #:474
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`
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`183‒87 (Ill. 2005). Illinois statutes without extraterritorial effect permit a right of action only
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`where the circumstances relating to the alleged violation occurred “primarily and substantially in
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`Illinois.” Avery, 835 N.E.2d at 852‒54. BIPA contains no express provision for extraterritorial
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`effect, and so it applies only to alleged violations within Illinois.
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`This is not a case where an out-of-state company reached into Illinois to collect information
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`from Illinois residents. See Neals v. PAR Tech. Corp., 419 F. Supp. 3d 1088, 1090‒91 (N.D. Ill.
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`2019) (plaintiff provided her fingerprint to defendant while in Illinois). Likewise, this is not a case
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`where an Illinois resident had an interaction with the defendant in Illinois; in fact, the Plaintiff
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`alleges he had no interaction with Clearview anywhere, at all. Compare Patel v. Facebook, Inc.,
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`932 F.3d 1264, 1276 (9th Cir. 2019) (collection occurred where users interacted with app), with
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`Mutnick FAC ¶¶ 27‒35 (alleging Plaintiff had no interation directly with Clearview).
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`Plaintiff instead alleges the obvious: that his and the putative class’ images were created in
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`and uploaded by devices in Ilinois. Mutnick FAC ¶ 17. Plaintiff does not and cannot allege that
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`he provided Clearview with any information. Clearview has no business operations or servers in
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`Illinois. Mulcaire Decl. ¶¶ 2, 4. The business activities challenged by Plaintiff occurred
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`undisputedly in New York, where Clearview’s offices are located and its employees transact its
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`business. Id. ¶¶ 2, 4. And rather than alleging actions that occurred “primarily and substantially”
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`in Illinois—as he must to confer jurisdiction—Plaintiff claims that Clearview “gather[ed]
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`information on millions of American citizens” from its headquarters in New York, “furnish[ed]
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`this data to law enforcement agencies throughout the United States,” and “executed agreements
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`with hundreds of state actors in jurisdictions throughout the country.” Mutnick FAC ¶¶ 2, 13, 38.
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`Plainly put, nothing that Clearview did occurred in Illinois. Since BIPA does not have
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`extraterritorial application, Plaintiff’s Motion fails.
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`8
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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 10 of 18 PageID #:475
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`2. The Dormant Commerce Clause Precludes Application of BIPA
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`Even if BIPA had extraterritorial reach, applying BIPA to Clearview here would violate
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`the dormant Commerce Clause, which “precludes the application of a state statute” that has “the
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`practical effect of . . . control[ling] conduct beyond the boundaries of the State,” “whether or not
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`the commerce has effects within the State.” Healy v. Beer Inst., Inc., 491 U.S. 324, 336 & n.1
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`(1989). The dormant Commerce Clause prevents “inconsistent legislation arising from the
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`projection of one state regulatory regime into the jurisdiction of another State.” Id. at 337.
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`Otherwise, “any state that has chosen a policy more laissez faire than [Illinois’s] would have its
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`choices stymied, because the state that has chosen more regulation could always trump its
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`deregulated neighbor.” Morley-Murphy Co. v. Zenith Elecs. Corp., 142 F.3d 373, 379 (7th Cir.
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`1998).
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`In this case, Plaintiff asks the Court to extend the reach of an Illinois statute over commerce
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`conducted in other states. Doing so would “exalt the public policy of one state over that of another”
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`in precisely the manner prohibited by the dormant Commerce Clause. Midwest Title Loans, Inc.
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`v. Mills, 593 F.3d 660, 668 (7th Cir. 2010). This case presents an egregious example because
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`Clearview’s home state has considered BIPA-style legislation, but has never enacted it. See, e.g.,
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`A1911, Assemb., Reg. Sess. (N.Y. 2019); S1203, Senate, Reg. Sess. (N.Y. 2019). Plaintiff’s
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`claims seek to expand Illinois law “beyond the boundaries of the state” and so allow Illinois to
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`“tell out-of-state companies how to operate their businesses.” Legato Vapors, LLC v. Cook, 847
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`F.3d 825, 834 (7th Cir. 2017). Applying BIPA here would violate the dormant Commerce Clause.
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`3. BIPA Does Not Apply to State and Local Government Contractors
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`Plaintiff alleges that Clearview acted “as an agent of law enforcement,” including the
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`Chicago Police Department (“CPD”), and as an agent of “state actors.” Mutnick FAC ¶¶ 37-39.
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`9
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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 11 of 18 PageID #:476
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`These allegations are fatal to Plaintiff’s attempted application of BIPA. BIPA expressly exempts
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`the conduct of “State or local government agenc[ies].” 740 ILCS 14/10. That exemption also
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`extends to any “contractor, subcontractor, or agent of a State agency or local unit of government
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`when working for that State agency or local unit of government.” 740 ILCS 14/25(e). That is
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`exactly what Plaintiffs allege Clearview is: An agent of government.4 And if it were not an agent
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`of the Chicago or Ilinois governments, Clearview operates as an agent for other state and federal
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`entities, putting Clearview within the scope of BIPA’s exemption and outside of BIPA’s reach.
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`B. Plaintiff Waived Any Claim by Making His Photos Publicly Available
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`Once an individual makes information available to the public, he or she waives the right to
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`later claim that information remained personal or confidential. Smith v. Maryland, 442 U.S. 735,
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`743–44 (1979). Given Plaintiff’s voluntary act of making his photos public on the internet, he has
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`waived any right to privacy with respect to those photos.
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`That an individual can chose to share or discard their confidential information has long
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`been part of this nation’s jurisprudence. See, e.g., California v. Greenwood, 486 U.S. 35, 41 (1988)
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`(holding there is no reasonable expectation of privacy in items discarded outside the home); United
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`States v. Caira, 833 F.3d 803, 806 (7th Cir. 2016) (“[A] person has no legitimate expectation of
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`privacy in information he voluntarily turns over to third parties[.]”). This jurisprudence has been
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`extended to the action of posting photos online. See hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d
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`985, 994 (9th Cir. 2019) (affirming injunction barring suit for collecting publicly-available
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`information from LinkedIn pages); Citizens Info. Assocs., LLC v. Justmugshots.com, No. 12-cv-
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`573, 2012 WL 12874898, at *4 (W.D. Tex. Dec. 18, 2012) (permitting access to public mugshots).
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`4 CPD and the City are a single, indivisible legal entity. See Singleton v. E. Peoria Police Dep’t,
`No. 15-CV-1503, 2016 WL 225692, at *5 (C.D. Ill. Jan. 19, 2016); Harrison v. City of Chicago,
`No. 05 C 2680, 2005 WL 3542576, at *2 (N.D. Ill. Dec. 22, 2005).
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`10
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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 12 of 18 PageID #:477
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`The Illinois Supreme Court has recognized that a purpose of BIPA is to “vest[] in
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`individuals and customers the right to control their biometric information by requiring notice
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`before collection and giving them the power to say no by withholding consent.” Rosenbach v. Six
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`Flags Entm’t Corp., 129 N.E.3d 1197, 1206, 432 Ill. Dec. 654, 663 (Ill. 2019). As such, BIPA
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`protects material akin to “confidential and sensitive information.” 740 ILCS 14/15(e)(2). Any
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`information an individual makes available to the public by its very nature cannot be confidential
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`and cannot be expected to remain private. Cf. Bernal v ADP, LLC, No. 2017-CH-12364, 2019 WL
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`5028609, at *1 n.9 (Ill. Cir. Ct. Aug. 23, 2019) (“[T]here is little reason to believe that [BIPA’s]
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`applicability should extend beyond the point at which an individual has the right to withhold
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`consent.”).
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`Here, Plaintiff admits that he voluntarily posted his photos publicly on third-party websites.
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`Mutnick FAC ¶¶ 28-30. That admission undercuts any notion that Clearview “st[ole]” photos. See
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`id. ¶ 35. By making his photos public, Plaintiff waived his claims to their confidentiality. For
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`good reason, no court has held that BIPA applies to publicly-available photos—an issue wholly
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`ignored by Plaintiff—further diminishing Plaintiff’s likelihood of success. BIPA, in fact,
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`specifically exempts photographs, 740 ILCS 14/10, meaning that regardless of whether Clearview
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`“stole” photographs in the public domain, those photographs cannot be the subject of a BIPA
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`claim.
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`V. Plaintiff Cannot Show a Likelihood of Success on the Merits
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`Plaintiff asserts he has a “high likelihood” of success on his BIPA claims because
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`Clearview has “no substantive defense.” ECF No. 32, at 15. For the reasons above and below,
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`Plaintiff is wrong.
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`First, Plaintiff asserts that Clearview “cannot dispute that [it] do[es] not have the requisite
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`11
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`written policy regarding the retention schedule and destruction guidelines for the Biometric
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`Identifiers.” Id. That is flatly wrong. Clearview does have a data-retention policy, which as
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`described above, will cause all Illinois Information to be retained subject to the outcome of this
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`litigation. Mulcaire Decl. ¶ 17; see Bernal, 2019 WL 5028609, at *2 (BIPA does not identify
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`when a company needs to establish a retention policy).
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`Clearview’s downloading of photographs alone cannot violate BIPA because photographs
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`are exempt from BIPA. 740 ILCS 14/10. With respect to the information obtainable from
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`Plaintiff’s photos, Plaintiff’s collection claim fails because by making his photographs publicly
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`available on the internet, Plaintiff provided consent to the use of his photographs and the data
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`contained therein by others. See supra Section IV.B; see also 5 ILCS 175/5-105, -115 (an
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`“electronic record” satisfies statutory requirements for “written” documentation).
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`As to Plaintiff’s allegations that Clearview is disseminating biometric identifiers and
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`profiting from them, Mutnick FAC ¶¶ 94, 101, those fail because Clearview does not provide, sell,
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`or disseminate any biometric identifiers or biometric information. Mulcaire Decl. ¶ 10. BIPA’s
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`restrictions cannot be read to prohibit apps like Clearview’s; BIPA’s purpose is to “regulat[e]”
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`“biometric identifier-facilitated transactions,” not to prohibit them. 740 ILCS 14/5(c), (g); see also
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`740 ILCS 14/5(a) (reciting advantages of the “use of biometrics”).5
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`For all the foregoing reasons, Plaintiff faces an exceedingly improbable chance of success
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`5 As used in BIPA, the clause in subsection 15(c), “or otherwise profit from,” is meant to reinforce
`the prohibition on selling biometric data; it is not meant to prohibit the separate act of using
`biometrics but not selling or disseminating them. Any other interpretation would violate the basic
`rule of statutory construction that “when a statutory clause specifically describes several classes
`of persons or things and then includes ‘other persons or things,’ the word ‘other’ is interpreted to
`mean ‘other such like.’” Pooh-Bah Enters. v. Cty. of Cook, 905 N.E.2d 781, 799, 232 Ill. 2d 463,
`491 (Ill. 2009).
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`Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 14 of 18 PageID #:479
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`on the merits of his BIPA claims. As a result, the Court should deny the Motion.
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`VI.
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`Plaintiff Has Not Demonstrated That He Lacks an Adequate Remedy at Law
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`To demonstrate that he lacks an adequate remedy at law, Plaintiff must show that traditional
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`legal remedies, like money damages, are inadequate. Roland Mach. Co. v. Dresser Indus., Inc.,
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`749 F.2d 380, 386 (7th Cir. 1984). Plaintiff has not done so and cannot do so. BIPA provides an
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`adequate remedy to Plaintiff in the form of statutory damages. See TD Bank N.A. v. Hill, 928 F.3d
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`259, 282 (3d Cir. 2019) (vacating permanent injunction where statutory damages provided an
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`adequate remedy); Zahedi v. McCalla Raymer, LLC, No. 1:15-CV-525-WSD, 2015 WL
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`13779036, at *2 (N.D. Ga. Feb. 27, 2015) (similar); ISM Sports, Inc. v. Provta, No. 04-cv-0918,
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`2007 WL 316562, at *3 (E.D.N.Y. Jan. 30, 2007) (similar).
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`VII.
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`Plaintiff Has Not Demonstrated Irreparable Harm
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`Plaintiff cannot obtain a preliminary injunction unless he can show that he “will suffer
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`irreparable harm in the interim—that is, harm that cannot be prevented or fully rectified by the
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`final judgment after trial.” Roland Mach., 749 F.2d at 386. In an effort to meet his burden, Plaintiff
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`asserts that Clearview does not properly secure personal information. ECF No. 32, at 13‒14.
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`Plaintiff’s allegation is belied by undisputed facts. Mulcaire Decl. ¶ 12 (Clearview has not
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`experienced a cybersecurity event related to any personal information). Plaintiff’s counsel’s
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`musings about surveillance states and loss of liberty without any factual support through
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`declarations or otherwise is simply not enough. Mutnick FAC ¶ 3; ECF No. 32, at 10, 13; see
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`Outdoor Lighting Perspectives Franchising, Inc. v. Stubbs, No. 11-cv-2524, 2012 WL 12904016,
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`at *2 (D.S.C. June 15, 2012) (equities are against injunctive relief where plaintiff offered “no real
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`specifics to support” assertion of irreparable harm); Pac. Trellis Fruit, LLC v. Agricola Yaurilla,
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`S.A., No. 16-cv-4160, 2016 WL 9226379, at *1 (C.D. Cal. Oct. 17, 2016) (requiring more than
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`speculative irreparable harm).
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`Plaintiff ultimately does not face irreparable harm because Clearview has taken a series of
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`voluntary measures to identify the Illinois Information, segregate it, and to prevent the collection
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`or use of additional Illinois Information in the future. ECF No. 31, at 1 (requesting that Clearview
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`not collect biometrics from Illinois residents). Clearview is also maintaining reasonable
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`safeguards to secure the Illinois Information, id. at 2 (requesting that Clearview maintain
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`“reasonable” security measures), and if so required, at the end of this litigation, will delete the
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`Illinois Information, id. at 1 (requesting that Clearview maintain a document retention policy).
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`Clearview does not sell, lease, trade, profit from, or disseminate any biometrics. Id. at 1-2.
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`Because Clearview has mooted each element of Plaintiff’s requested relief, Plaintiff will not suffer
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`any harm, let alone irreparable harm, if the injunction does not issue. And if Clearview’s actions
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`were not sufficient in some way, BIPA allows for Plaintiff’s harms to be “fully rectified” after
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`trial. Supra Section VI.
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`VIII. The Balance of the Equities and the Public Interest Weigh Against an Injunction
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`The balance of the equities weighs against imposing an injunction. Unsupported by any
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`declarations, Plaintiff alleges that he will suffer harm without an injunction—an argument belied
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`by Plaintiff’s belated conduct—and disregards the harm that an injunction could have on
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`Clearview and its law enforcement clients who use Clearview to assist in identifying victims and
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`suspects in lawful criminal investigations.6 ECF No. 32, at 15.
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`Clearview has taken reasonable steps to identify and exclude all Illinois Information from
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`6 See, e.g., Kashmir Hill & Gabriel J.X. Dance, Clearview’s Facial Recognition App Is Identifying
`Child Victims of Abuse, N.Y. Times (Feb. 7, 2020), https://www.nytimes.com/2020/02/07/
`business/clearview-facial-recognition-child-sexual-abuse.html.
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`its apps. Supra at 3-4. A preliminary injunction requiring more would put Clearview out of
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`business. No technology exists, for example, that would enable a company to comply with
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`Plaintiff’s requested relief to identify every publicly-available image belonging to an Illinois
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`resident on the World Wide Web, and exclude those images from an app. Photos of Illinois
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`residents can be uploaded from anywhere in the world, shared from website to website, and can
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`lack any geolocation information.7 Thus, if such relief were granted, Clearview would effectively
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`be precluded from using its database of publicly-available images, notwithstanding the fact that it
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`has put in place reasonable and comprehensive technical and practical safeguards to block the
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`photos and biometrics of Illinois residents and to prevent Illinois residents from accessing its app.
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`The equities here therefore favor denying Plaintiff’s Motion. The public would not be
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`served by the imposition of a court order mandating actions Clearview has already taken on its
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`own. See Madonna v. Acad. Collection Serv., Inc., No. 95-cv-875, 1997 WL 530101, at *11 (D.
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`Conn. Aug. 12, 1997) (refusing to impose injunction where defendant alr