Case 1:20-cv-01296 Document 1 Filed 02/13/20 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`MARIO CALDERON and JENNIFER ROCIO,
`individually and on behalf of all others similarly
`situated,
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`Plaintiffs,
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`Civil Action No.:
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`v.
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`CLEARVIEW AI, INC. and
`CDW GOVERNMENT LLC,
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`Defendants.
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`
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`Plaintiffs Mario Calderon and Jennifer Rocio (“Plaintiffs”) bring this Class Action
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`Complaint against Defendants Clearview AI, Inc. (“Clearview”) and CDW Government LLC
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`(“CDW”) or (collectively “Defendants”), individually and on behalf of all others similarly
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`situated, and complain and allege upon personal knowledge as to themselves and their own acts
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`and experiences and, as to all other matters, upon information and belief, including an
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`investigation conducted by their attorneys:
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`NATURE OF THE ACTION
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`Plaintiffs bring this action for damages and other legal and equitable remedies
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`1.
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`resulting from the illegal actions of Clearview and CDW in collecting, storing and using their
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`and other similarly situated individuals’ biometric identifiers1 and biometric information2
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`(referred to collectively at times as “biometrics”) without informed written consent, in direct
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`1 A “biometric identifier” is any personal feature that is unique to an individual, including
`fingerprints, iris scans, DNA and “face geometry,” among others.
`2 “Biometric information” is any information captured, converted, stored, or shared based on a
`person’s biometric identifier used to identify an individual.
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`Case 1:20-cv-01296 Document 1 Filed 02/13/20 Page 2 of 11
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`violation of Illinois’ Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq.
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`2.
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`The Illinois Legislature has found that “[b]iometrics are unlike other unique
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`identifiers that are used to access finances or other sensitive information.” 740 ILCS 14/5(c).
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`“For example, social security numbers, when compromised, can be changed. Biometrics,
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`however, are biologically unique to the individual; therefore, once compromised, the individual
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`has no recourse, is at heightened risk for identity theft, and is likely to withdraw from biometric-
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`facilitated transactions.” Id.
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`3.
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`In recognition of these concerns over the security of individuals’ biometrics, the
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`Illinois Legislature enacted BIPA, which provides, inter alia, that a private entity like Clearview
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`may not obtain and/or possess an individual’s biometrics unless it: (1) informs that person in
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`writing that biometric identifiers or information will be collected or stored; (2) informs that
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`person in writing of the specific purpose and length of term for which such biometric identifiers
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`or biometric information is being collected, stored and used; (3) receives a written release from
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`the person for the collection of her or her biometric identifiers or information; and (4) publishes
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`publicly available written retention schedules and guidelines for permanently destroying
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`biometric identifiers and biometric information.
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`4.
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`In direct violation of each of the foregoing provisions, Clearview and CDW
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`actively collected, stored and used Plaintiffs’ biometrics—and the biometrics of most of the
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`residents of Illinois—without providing notice, obtaining informed written consent or publishing
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`data retention policies.
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`5.
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`Specifically, Clearview has amassed a database of more than three billion
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`photographs that it scraped from sources including Instagram, Twitter, YouTube, Facebook,
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`Venmo and millions of other websites. Using this data, Clearview created a facial recognition
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`2
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`tool that can identify virtually anyone by simply uploading a photograph. Users can take a
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`picture of a stranger on the street, upload it to Clearview’s tool and instantly see photos of that
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`person on various social media platforms and websites, along with the person’s name, address
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`and other identifying information.
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`6.
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`As the New York Times explained, this tool, which Clearview has licensed to
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`“hundreds of law enforcement agencies,” could “end your ability to walk down the street
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`anonymously.” “The weaponization possibilities of this are endless,” said Eric Goldman, co-
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`director of the High Tech Law Institute at Santa Clara University. “Imagine a rogue law
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`enforcement officer who wants to stalk potential romantic partners, or a foreign government
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`using this to dig up secrets about people to blackmail them or throw them in jail.”
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`7.
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`Clearview sells its facial recognition tool through its Illinois-based agent CDW.
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`CDW, on behalf of Clearview, licenses the Clearview app to law enforcement agencies and other
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`entities. One of Clearview’s clients, obtained through CDW, is the Chicago Police Department
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`(“CPD”). The CPD entered into a two-year, $49,875 contract on January 1, 2020 with CDW to
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`use Clearview’s technology. For at least two months before that, select officials at the CPD’s
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`Crime Prevention and Information Center (“CPIC”) used the software on a trial basis after
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`another law enforcement agency recommended the technology. After the trial ended, the CPD
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`was so impressed with the results that it gave approximately 30 CPIC officials full access to
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`Clearview’s technology, effectively unleashing this vast, Orwellian surveillance tool on the
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`citizens of Illinois.
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`JURISDICTION AND VENUE
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`This Court has original jurisdiction over this controversy pursuant to 28 U.S.C.
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`8.
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`§ 1332(d) because there are more than 100 class members and the aggregate amount in
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`controversy exceeds $5,000,000.00, exclusive of interest, fees, and costs, and at least one Class
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`member is a citizen of a state different from one of the Defendants.
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`9.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Clearview
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`maintains is corporate headquarters and principal place of business in this District.
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`PARTIES
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`10.
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`Plaintiff Mario Calderon is, and has been at all relevant times, a resident and
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`citizen of Chicago, Illinois. Mr. Calderon is an account holder for several services from which
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`Clearview has scraped data, including Facebook, Instagram, Snapchat and Google Photos. He
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`has uploaded photographs depicting his face to these websites from within Illinois on a regular
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`basis, at least some of which are publicly available. These photographs contained metadata
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`reflecting that he was located within Illinois. As such, Mr. Calderon is informed and believes
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`that his biometrics (a scan of facial geometry) are contained in Clearview’s database and that his
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`biometrics have been disclosed to CDW and CPD and used by CDW and CPD via Clearview’s
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`proprietary platform. Defendants’ collection, storage and use of his biometrics violated Mr.
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`Calderon’s statutorily protected rights under BIPA. Defendants’ actions also invaded his privacy
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`and caused him to lose control over his biometrics.
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`11.
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`Plaintiff Jennifer Rocio is, and has been at all relevant times, a resident and
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`citizen of Romeoville, Illinois. Ms. Rocio is an account holder for several services from which,
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`on information and belief, Clearview has scraped data, including Facebook, Snapchat, Instagram,
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`YouTube, TikTok and others. She has uploaded photographs depicting her face to these
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`websites from within Illinois on a regular basis, at least some of which are publicly available.
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`These photographs contained metadata reflecting that she was located within Illinois. As such,
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`Ms. Rocio is informed and believes that her biometrics (a scan of facial geometry) are contained
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`in Clearview’s database and that her biometrics have been disclosed to CDW and CPD and used
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`by CDW and CPD via Clearview’s proprietary platform. Defendants’ collection, storage and use
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`of her biometrics violated her statutorily protected rights under BIPA. Defendants’ actions also
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`invaded her privacy and caused her to lose control over her biometrics.
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`12.
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`Defendant Clearview AI, Inc. is a Delaware corporation with its headquarters
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`located at 214 W 29th Street, 2nd Floor, New York, NY, 10001. Clearview has collected the
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`biometrics of Illinois residents without the requisite consent, including that of the Plaintiffs and
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`members of the proposed Class, and has sold or otherwise disclosed that data to Illinois-based
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`entities, including to the Chicago Police Department. Clearview continues to engage in this
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`conduct to this day.
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`13.
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`Defendant CDW Government LLC is an Illinois company headquartered in
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`Vernon Hills, Illinois. CDW acts as Clearview’s agent to license Clearview’s proprietary facial
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`recognition platform to third parties, including the Chicago Police Department.
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`CLASS ACTION ALLEGATIONS
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`14.
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`Plaintiff seeks to represent a class defined as all individuals who, while residing in
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`the state of Illinois, had their biometric identifiers captured, collected, or obtained by Clearview
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`at any point during the preceding five years. Excluded from the Class is any entity in which any
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`Defendant has a controlling interest, and officers or directors of Defendants.
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`15. Members of the Class are so numerous that their individual joinder herein is
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`impracticable. Upon information and belief, members of the Class number in the millions. The
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`precise number of Class members and their identities are unknown to Plaintiffs at this time but
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`may be determined through discovery. Class members may be notified of the pendency of this
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`action by mail and/or publication through the distribution records of Defendants.
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`16.
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`Common questions of law and fact exist as to all Class members and predominate
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`over questions affecting only individual Class members. Common legal and factual questions
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`include, but are not limited to:
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`a. whether Defendants properly informed Plaintiffs and each Class member that they
`collected, used, and stored their biometric identifiers or biometric information;
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`b. whether Defendants obtained a written release (as defined in 740 ILCS 1410) to
`collect, use, and store Plaintiffs’ and each Class member’s biometric identifiers or
`biometric information;
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`c. whether Defendants violated BIPA in Illinois by collecting, capturing, or
`obtaining Plaintiffs’ and each Class member’s biometric identifiers or biometric
`information absent the requisite informed written release;
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`d. whether Defendants developed a written policy, made available to the public,
`establishing a retention schedule and guidelines for permanently destroying
`biometric identifiers and biometric information when the initial purpose for
`collecting or obtaining such identifiers or information has been satisfied or within
`3 years of their last interaction, whichever occurs first;
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`e. whether Defendants stored, disclosed, sold, or otherwise used Plaintiffs’ and each
`Class’s biometric identifiers or biometric information in Illinois;
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`f. whether any violations of BIPA committed by Defendants were committed
`negligently; and
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`g. whether any violations of BIPA committed by Defendants were committed
`knowingly or recklessly.
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`17.
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`The claims of the named Plaintiffs are typical of the claims of the Class in that
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`Defendants collected, captured, or obtained each of their biometrics while each was residing in
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`Illinois, without obtaining consent or adhering to the other requirements of BIPA.
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`18.
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`Plaintiffs are adequate representatives of the Class because their interests do not
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`conflict with the interests of the Class members they seek to represent, they have retained
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`competent counsel experienced in prosecuting class actions, and they intend to prosecute this
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`action vigorously. The interests of Class members will be fairly and adequately protected by
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`Plaintiffs and their counsel.
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`19.
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`The class mechanism is superior to other available means for the fair and efficient
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`adjudication of the claims of Class members. Each individual Class member may lack the
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`resources to undergo the burden and expense of individual prosecution of the complex and
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`extensive litigation necessary to establish Defendants’ liability. Individualized litigation
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`increases the delay and expense to all parties and multiplies the burden on the judicial system
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`presented by the complex legal and factual issues of this case. Individualized litigation also
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`presents a potential for inconsistent or contradictory judgments. In contrast, the class action
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`device presents far fewer management difficulties and provides the benefits of single
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`adjudication, economy of scale, and comprehensive supervision by a single court on the issue of
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`Defendants’ liability. Class treatment of the liability issues will ensure that all claims and
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`claimants are before this Court for consistent adjudication of the liability issues.
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`COUNT I
`Violation of the Illinois Biometric Information
`Privacy Act, 740 ILCS 14/1, et seq.
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`Plaintiffs incorporate by reference the foregoing allegations as if fully set forth
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`20.
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`herein.
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`21.
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`Illinois’ BIPA requires private entities, such as Defendants, to obtain informed
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`written consent from individuals before acquiring their biometric information. Specifically,
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`BIPA makes it unlawful to “collect, capture, purchase, receive through trade, or otherwise obtain
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`a person’s or customer’s biometric identifiers or biometric information unless [the entity] first:
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`(1) informs the subject . . . in writing that a biometric identifier or biometric information is being
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`collected or stored; (2) informs the subject . . . in writing of the specific purpose and length of for
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`which a biometric identifier or biometric information is being captured, collected, stored, and
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`used; and (3) receives a written release executed by the subject of the biometric identifier or
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`biometric information . . . .” 740 ILCS 14/15(b).
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`22.
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`Illinois’ BIPA also requires that private entities in possession of biometric
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`identifiers and/or biometric information establish and maintain a publicly available retention
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`policy. Entities which possess biometric identifiers or information must (i) make publicly
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`available a written policy establishing a retention schedule and guidelines for permanent deletion
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`of biometric information (entities may not retain biometric information longer than three years
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`after the last interaction with the individual); and (ii) must adhere to the publicly posted retention
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`and deletion schedule.
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`23.
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`Defendants are each a “private entity” as that term is defined under BIPA. See
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`740 ILCS 14/10.
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`24.
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`Plaintiffs are informed and believe that, through photographs available on various
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`websites, Defendants collected, captured, received or otherwise obtained the “biometric
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`identifiers” of Plaintiffs and the other Class members, including scans of their face geometry.
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`25.
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`Using data derived from Plaintiffs’ and the Class members’ biometric identifiers,
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`Plaintiffs are informed and believe that Defendants also collected, captured, received or
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`otherwise obtained the “biometric information” of Plaintiffs and the other Class members, in the
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`form of their name, gender, age, location and other data.
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`26.
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`Plaintiffs are informed and believe that Defendants thereafter sold or otherwise
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`disclosed Plaintiffs’ and the other Class members’ biometric identifiers and/or biometric
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`information to other third parties in Illinois. Plaintiffs are informed and believe that one or more
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`of these third parties, by way of Clearview’s platform, used and stored Plaintiffs’ and the other
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`Class members’ biometrics in Illinois.
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`27.
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`Defendants’ practices with respect to capturing, collecting, storing, and using
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`biometric identifiers and biometric information fails to comply with applicable BIPA
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`requirements. Specifically, with respect to Plaintiffs and the other Class members, Defendants
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`failed to:
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`a. obtain the written release required by 740 ILCS 14/15(b)(3);
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`b. inform Plaintiffs and the other Class members in writing that their biometric
`identifiers and/or biometric information were being captured, collected, stored,
`and used, as required by 740 ILCS 14/15(b)(1);
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`c. inform Plaintiffs and the other Class members in writing of the specific purpose
`for which their biometric information and/or biometric identifiers were being
`captured, collected, stored, and used, as required by 740 ILCS 14/15(b)(2);
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`d. inform Plaintiffs and the other Class members in writing of the specific length of
`term their biometric information and/or biometric identifiers were being captured,
`collected, stored and used, as required by 740 ILCS 14/15(b)(2); and
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`e. provide a publicly available retention schedule detailing the length of time
`biometric information is stored and guidelines for permanently destroying the
`biometric information it stores, as required by 740 ILCS 14/15(a).
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`28.
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`By capturing, collecting, storing, and using Plaintiffs’ and the other Class
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`members’ biometric identifiers and/or biometric information as described herein, Defendants
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`violated Plaintiffs’ and the other Class members’ respective rights to privacy as set forth in
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`BIPA. 740 ILCS 14/15(a).
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`29.
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`BIPA provides for statutory damages of $5,000 for each willful and/or reckless
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`violation of BIPA and, alternatively, damages of $1,000 for each negligent violation of BIPA.
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`740 ILCS 14/20(1).
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`30.
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`The harms suffered by the Plaintiffs and other members of the Class are actual
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`injuries, compensable in actual monetary damages under BIPA, no different than any other non-
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`pecuniary yet monetarily compensable injuries (e.g., reputational harm, pain and suffering,
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`mental and emotional distress, loss of consortium, and the list goes on and on).
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`31.
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`Defendants’ violations of BIPA, as set forth herein, were knowing and willful, or
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`were in reckless disregard of the statutory requirements. Alternatively, Defendants negligently
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`failed to comply with BIPA disclosure, consent, and policy posting requirements.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs and the other Class members respectfully request that the
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`Court:
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`a. Certify the Class as defined above, appointing Plaintiffs as class representatives
`and the undersigned as class counsel;
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`b. Declare that Defendants’ actions, as set forth herein, violate BIPA;
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`c. Award injunctive and equitable relief as necessary to protect the interests of
`Plaintiffs and the Class by requiring Defendants to comply with BIPA
`requirements for the capture, collection, storage, and use of biometric identifiers
`and biometric information, including an injunction requiring Defendants to
`permanently destroy all biometric information of Plaintiffs and the other Class
`members in their possession and compensation in an amount to be determined at
`trial for the commercial value of Plaintiff’s biometric information;
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`d. Award statutory damages of $5,000 for each willful and/or reckless violation of
`the BIPA, pursuant to 740 ILCS 14/20(1);
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`e. Award statutory damages of $1,000 for each negligent violation of BIPA,
`pursuant to 740 ILCS 14/20(3);
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`f. Award reasonable attorneys’ fees, costs, and other litigation expenses pursuant to
`740 ILCS 14/20(3);
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`g. Award pre- and post-judgment interest, as allowable by law; and
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`h. Award such further and other relief as the Court deems just and equitable.
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`JURY DEMAND
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`Plaintiffs demand a trial by jury on all causes of action and issues so triable.
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`Dated: February 13, 2020
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`Respectfully submitted,
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`BURSOR & FISHER, P.A.
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`By: /s Joshua D. Arisohn
` Joshua D. Arisohn
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`
`Scott A. Bursor
`Joshua D. Arisohn
`888 Seventh Avenue
`New York, NY 10019
`Tel: (646) 837-7150
`Fax: (212) 989-9163
`E-Mail: scott@bursor.com
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`jarisohn@bursor.com
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`Frank S. Hedin (to be admitted pro hac vice)
`HEDIN HALL LLP
`Four Embarcadero Center, Suite 1400
`San Francisco, California 94104
`Telephone: (415) 766-3534
`Facsimile: (415) 402-0058
`Email: fhedin@hedinhall.com
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`Attorneys for Plaintiffs
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