Case 1:20-cv-00111-RDA-MSN Document 1 Filed 02/03/20 Page 1 of 9 PageID# 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`(Alexandria Division)
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`SHELBY ZELONIS ROBERSON,
`individually and on behalf of all others
`similarly situated,
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`Plaintiff,
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`v.
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`CLEARVIEW AI, INC.,
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`Defendant.
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`) Civil Action No.
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`CLASS ACTION COMPLAINT
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`Plaintiff Shelby Zelonis Roberson, by counsel, for her Class Action Complaint against
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`Defendant Clearview AI, Inc., states as follows:
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`NATURE OF THE CASE
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`1.
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`This is a class action brought under state law to redress the unauthorized use of
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`class members' photographs for purposes of trade in violation of Virginia Code § 8.01-40 and for
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`violations of the Virginia Computer Crimes Act.
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`2.
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`Specifically, Defendant Clearview AI, Inc., unlawfully has obtained the
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`photographs of class members without their consent and used them for a facial recognition
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`program for purposes of trade, i.e., to make a profit.
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`JURISDICTION AND VENUE
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`3.
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`Jurisdiction is proper under 28 U.S.C. § 1332(a) as the matter in controversy
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`exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of
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`different states.
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`4.
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`Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2), as a
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`substantial part of the events or omissions giving rise to the claims occurred in this judicial
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`district. All members of the proposed class, including Plaintiff, resided in Virginia during the
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`relevant time period, maintained their internet and social media accounts from Virginia, and
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`uploaded many of the images at issue from Virginia.
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`PARTIES
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`5.
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`Plaintiff is an adult individual and a resident of Fairfax County, Virginia, within
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`this judicial district.
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`6.
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`Defendant Clearview AI, Inc. ("Clearview") is a Delaware corporation with its
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`principal place of business in New York (although it does not appear to have filed the required
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`Application for Authority with the New York Department of State, Division of Corporations).
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`FACTS
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`7.
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`Clearview is a for-profit company that has "scraped" billions of photographs of
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`individuals without their consent from the internet and loaded them into a database in order to
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`use facial recognition technology to compare photographs of unknown individuals against its
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`database of stolen photographs of known individuals. "Scraping" is the process of extracting
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`large amounts of information from a website. This may be accomplished by downloading
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`individual web pages or an entire site. The downloaded content may include the text from the
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`pages, the full Hypertext Markup Language (commonly referred to as "HTML," which is a
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`standardized system for coding text files to achieve font, color, graphic, and/or hyperlink
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`effects), or both the HTML and images from each web page.
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`8.
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`The acquisition of the photographs violated the terms of service of the targeted
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`internet sites.
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`9.
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`Clearview licenses its technology to public and private entities in exchange for a
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`fee.
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`10.
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`For the reasons stated below, these actions violated the rights of Virginia
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`residents, including Plaintiff and proposed class members, who uploaded their photographs to
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`these websites from Virginia.
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`PERTINENT PROVISIONS OF THE VIRGINIA CODE
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`11.
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`Virginia Code § 8.01-40 provides:
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`Unauthorized use of name or picture of any person; punitive damages;
`statute of limitations.
`A. Any person whose name, portrait, or picture is used without having first
`obtained the written consent of such person . . . for the purposes of trade . . . may
`maintain a suit in equity against the person, firm, or corporation so using such
`person's name, portrait, or picture to prevent and restrain the use thereof; and may
`also sue and recover damages for any injuries sustained by reason of such use.
`And if the defendant shall have knowingly used such person's name, portrait or
`picture in such manner as is forbidden or declared to be unlawful by this chapter,
`the jury, in its discretion, may award punitive damages.
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`Va. Code § 8.01-40(A) (emphasis added).
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`12.
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`Clearview has violated this provision by knowingly using the pictures of class
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`members without their written consent for the purposes of trade.
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`13.
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`The Virginia Computer Crimes Act, Va. Code § 18.2-152.1 et seq., also prohibits
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`the actions taken by Clearview to steal the images of individuals in violation of the terms of
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`service of the internet websites from which it acquired those images and thereafter to use those
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`images for their for-profit facial recognition business.
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`14.
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`For each of the actions described below, the Virginia Computer Crimes Act
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`provides a private right of action as follows:
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`A. Any person whose property or person is injured by reason of a violation of
`any provision of this article or by any act of computer trespass set forth in
`subdivisions A1 through A8 of § 18.2-152.4 regardless of whether such act is
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`3
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`committed with malicious intent may sue therefor and recover for any damages
`sustained and the costs of suit. Without limiting the generality of the term,
`"damages" shall include loss of profits.
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`E. The provisions of this article shall not be construed to limit any person's right
`to pursue any additional civil remedy otherwise allowed by law.
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`Va. Code § 152.12(A).
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`15.
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`Clearview has committed multiple violations of the Virginia Computer Crimes
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`Act.
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`16.
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`First, Virginia Code § 18.2-152.3 provides:
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`Computer fraud; penalty.
`Any person who uses a computer or computer network, without authority and:
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`1. Obtains property or services by false pretenses;
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`2. Embezzles or commits larceny; or
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`3. Converts the property of another;
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`is guilty of the crime of computer fraud.
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`Va. Code § 18.2-152.3. Under the Virginia Computer Crimes Act, property is defined broadly to
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`include the following:
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`"Property" shall include:
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`1. Real property;
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`2. Computers and computer networks;
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`3. Financial instruments, computer data, computer programs, computer software
`and all other personal property regardless of whether they are:
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`a. Tangible or intangible;
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`b. In a format readable by humans or by a computer;
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`c. In transit between computers or within a computer network or between any
`devices which comprise a computer; or
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`d. Located on any paper or in any device on which it is stored by a computer or
`by a human; and
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`4. Computer services.
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`Va. Code § 18.2-152.2 (emphasis added).
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`17.
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`By "scraping" the images of class members in violation of the terms of service of
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`the websites and without the consent of class members, Clearview obtained property, as defined,
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`by false pretenses and also converted that property.
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`18.
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`Second, Virginia Code § 18.2-152.4 provides:
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`Computer trespass, penalty.
`A. It shall be unlawful for any person . . . to:
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`6. Use a computer or computer network to make or cause to be made an
`unauthorized copy, in any form, including, but not limited to, any printed or
`electronic form of computer data, computer programs or computer software
`residing in, communicated by, or produced by a computer or computer network.
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`Va. Code § 18.2-152.4(A).
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`19.
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`By "scraping" the images of class members in violation of the terms of service of
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`the websites and without the consent of class members, Clearview used a computer or computer
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`network to make an unauthorized copy of computer data, namely the class members' images,
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`residing in a computer or computer network.
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`20.
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`Third, Virginia Code § 18.2-152.5 provides:
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`Computer invasion of privacy; penalties.
`A. A person is guilty of the crime of computer invasion of privacy when he uses
`a computer or computer network and intentionally examines without authority any
`employment, salary, credit or any other financial or identifying information, as
`defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3, relating to
`any other person. "Examination" under this section requires the offender to
`review the information relating to any other person after the time at which the
`offender knows or should know that he is without authority to view the
`information displayed.
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`Va. Code § 18.2-152.5(A) (emphasis added). In turn, Virginia Code § 18.2-186.3 defines
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`"identifying information" to include, inter alia, name, date of birth, and "biometric data," which
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`includes the class members' images stolen by Clearview and used in its facial recognition
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`program.
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`21.
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`By "scraping" the images of class members in violation of the terms of service of
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`the websites and without the consent of class members, Clearview used a computer or computer
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`network to intentionally examine "identifying information," including "biometric data," and
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`reviewed such information as part of its facial recognition business model "after the time at
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`which the offender knows or should know that he is without authority to view the information
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`displayed."
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`22.
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`Fourth, Virginia Code § 18.2-152.5:1 provides:
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`Using a computer to gather identifying information; penalties.
`A. It is unlawful for any person, other than a law-enforcement officer, as defined
`in § 9.1-101, and acting in the performance of his official duties, to use a
`computer to obtain, access, or record, through the use of material artifice, trickery
`or deception, any identifying information, as defined in clauses (iii) through
`(xiii) of subsection C of § 18.2-186.3.
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`Va. Code § 18.2-152.5(A) (emphasis added). Again, Virginia Code § 18.2-186.3 defines
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`"identifying information" to include, inter alia, name, date of birth, and "biometric data."
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`23.
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`By "scraping" the images of class members in violation of the terms of service of
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`the websites and without the consent of class members, Clearview used a computer to obtain,
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`access, and record, through the use of material artifice, trickery or deception, identifying
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`information, as defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3.
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`CLASS ACTION ALLEGATIONS
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`24.
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`The proposed Class consists of thousands of persons; thus, the members of the
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`Class are so numerous that joinder of all class members is impracticable.
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`25.
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`The following are questions of law or fact common to the Class:
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`•
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`•
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`Whether Clearview violated Virginia Code § 8.01-40;
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`Whether Clearview violated the Virginia Computer Crimes Act;
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`Whether Clearview knowingly used class members' names, portraits, or pictures
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`in such manner as is forbidden or declared to be unlawful, thereby warranting an award of
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`punitive damages;
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`•
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`Whether injunctive relief should be granted to class members to prohibit the use
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`of their stolen data and to order its deletion.
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`26.
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`Further, the Plaintiff's claims are typical of the claims of the class as the
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`underlying facts and the violations alleged are precisely the same for all members of the
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`proposed class.
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`27. Moreover, the Plaintiff will fairly and adequately protect the interests of the class
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`as she has no interests that are adverse or antagonistic to those of the class.
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`28.
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`Finally, consistent with Federal Rule of Civil Procedure 23(b)(3), questions of
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`law or fact common to putative class members predominate over questions affecting only
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`individual members and a class action is superior to other available methods (i.e., individual
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`pursuit of litigation) for fairly and efficiently adjudicating the controversy.
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`29.
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`The proposed Class is as follows:
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`All Virginia residents whose names, portraits, or pictures were used by Clearview
`for purposes of trade without their written consent or who were injured by
`Clearview's violations of the Virginia Computer Crimes Act.
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`COUNT 1: VIOLATION OF VIRGINIA CODE § 8.01-40
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`The previous allegations are incorporated.
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`30.
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`31.
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`By virtue of the facts stated above, Clearview knowingly violated Virginia Code
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`§ 8.01-40.
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`32.
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`As a result of these knowing violations, Plaintiff and members of the class have
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`been damaged.
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`COUNT 2: VIOLATIONS OF THE VIRGINIA COMPUTER CRIMES ACT
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`The previous allegations are incorporated.
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`33.
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`34.
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`By virtue of the facts stated in this complaint, Clearview has violated the
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`provisions of the Virginia Computer Crimes Act identified above.
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`35.
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`As a result of these violations, Plaintiff and members of the class have been
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`damaged.
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`WHEREFORE, Plaintiff requests the following relief:
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`PRAYER FOR RELIEF
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`A.
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`That this Court certify this action as a class action pursuant to Federal Rule of
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`Civil Procedure 23(b)(2), in accordance with the class description proposed above and award
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`injunctive relief prohibiting Clearview from continuing the practices identified above and
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`mandating the deletion of all class members' data from all Clearview databases.
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`B.
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`That this Court certify this action as a class action pursuant to Federal Rule of
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`Civil Procedure 23(b)(3), in accordance with the class description proposed above;
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`C.
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`D.
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`E.
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`F.
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`An award of compensatory damages;
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`An award of punitive damages;
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`An award of attorney's fees and costs;
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`Such other preliminary and equitable relief as the court determines to be
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`appropriate; and,
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`G.
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`Such other and further relief as to the Court may appear just.
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`Trial by jury is demanded as to all claims.
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`JURY DEMAND
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`SHELBY ZELONIS ROBERSON
`By Counsel
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`WEBSTER BOOK LLP
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`By: /s/ Steven T. Webster
`Steven T. Webster (VSB No. 31975)
`swebster@websterbook.com
`Aaron S. Book (VSB No. 43868)
`abook@websterbook.com
`300 N. Washington St., Suite 404
`Alexandria, VA 22314
`(888) 987-9991 (telephone and fax)
`Counsel for Plaintiff
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