Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 1 of 18 PageID #:466

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID MUTNICK, for himself and others
similarly situated,
Plaintiff,
v.
CLEARVIEW AI, INC.; HOAN TONTHAT; RICHARD SCHWARTZ; and
CDW GOVERNMENT LLC,
Defendants.

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Case No. 20-cv-512
Hon. Sharon Johnson Coleman

CLEARVIEW DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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INTRODUCTION
Plaintiff waited nearly three months into this litigation—until a contest for lead class
counsel was underway—before asserting the need to stop some ongoing and imminent harm, and
to ask the Court to do something that no court appears to have done before: Issue a preliminary
injunction pursuant to the Illinois Biometric Information Privacy Act (“BIPA”). Plaintiff’s motion
(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.

Plaintiff’s Motion fails to address numerous threshold issues of law.
First, for the reasons set forth in their motion to dismiss (see ECF Nos. 45‒46), Clearview
AI, Inc. and Messrs. Hoan Ton-That and Richard Schwartz (together, the “Clearview Defendants”)
are not subject to personal jurisdiction here. This fact alone is fatal to Plaintiff’s Motion.
Second, the relief Plaintiff seeks has been mooted. Without admitting that BIPA applies
to it (and for the reasons discussed below, it does not) Clearview has taken and is continuing to
take comprehensive steps to prevent the collection of facial vectors from photos associated with
Illinois, and to prohibit the searching of existing photos associated with Illinois. Moreover,
Clearview has taken steps to secure and implement limits regarding the retention of any Illinois
photos. Clearview is terminating access rights to its app for all account holders based in Illinois
and is terminating the accounts of any non-law enforcement or government entity. In short, each
aspect of the requested relief has been mooted. Significantly, Plaintiff does not seriously contend
otherwise.

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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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Third, BIPA does not apply to Clearview. BIPA cannot reach a defendant’s conduct—like
that here—occurring outside of Illinois. If BIPA were applied in an extraterritorial fashion, as
Plaintiff demands, it would violate the dormant Commerce Clause. And finally, Plaintiff’s
allegation that Clearview is acting as an “agent” of law enforcement, Mutnick FAC ¶ 37, and with
“state actors,” id. ¶ 38, precludes BIPA’s application here pursuant to an express exemption.
Fourth, even if the Court were to conclude that it has jurisdiction, that the Motion is not
moot, and that BIPA applies to Clearview, Plaintiff cannot show that he has a likelihood of success
under BIPA.
Finally, even assuming the Clearview Defendants were subject to jurisdiction in Illinois,
the Motion had not been mooted by Clearview’s actions, BIPA applied to Clearview, and Plaintiff
could demonstrate a likelihood of success on the merits, the Motion should still be denied. Given
the availability of statutory damages, Plaintiff cannot meet his burden of showing an inadequate
remedy at law. The equities also disfavor an injunction. To take any additional steps beyond those
already taken by Clearview would effectively put Clearview out of business. Conversely, in light
of the actions already taken by Clearview, Plaintiff stands to gain little more from an injunction.
For these reasons and those below, the Motion should be denied.
BACKGROUND
Clearview AI, Inc.
Hoan Ton-That and Richard Schwartz, both New York residents, co-founded Clearview.
They respectively manage information technology and sales for the company, and Ton-That also
serves as the company’s chief executive officer. ECF No. 46-7, ¶ 1; ECF No. 46-2, ¶ 1.
Clearview is a startup that collects publicly-available images on the internet and organizes
them into a searchable database, which Clearview’s licensed users can then search. ECF No. 46-

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7, ¶ 6; Declaration of Thomas Mulcaire (“Mulcaire Decl.”) ¶ 3. Clearview only offers an online
app through which users can search images. Mulcaire Decl. ¶ 3. Clearview’s technology searches
the “open web” and public sources for image files, and downloads the files and webpage URLs
into a database. Id. ¶¶ 4, 9. The images that Clearview accesses are available to anyone with an
internet connection. Id. ¶ 4.
Clearview has never experienced a data breach related to personal information, and it
implements reasonable security safeguards for its data. Id. ¶¶ 12‒14. Clearview does not sell,
lease, or disseminate any biometric information to its customers. Id. ¶ 10.
Voluntary Steps Taken by Clearview
As part of an ongoing business review commenced prior to the Motion, Clearview has
recently and voluntarily changed its business practices to avoid including data from Illinois
residents and to avoid transacting with non-governmental customers anywhere. Specifically,
Clearview is cancelling the accounts of every customer who was not either associated with law
enforcement or some other federal, state, or local government department, office, or agency.
Clearview is also cancelling all accounts belonging to any entity based in Illinois. Id. ¶ 16. All
photos in Clearview’s database that were geolocated in Illinois have been blocked from being
searched through Clearview’s app. Id. ¶ 17. Going forward, Clearview has constructed a
“geofence” around Illinois, and will not collect facial vectors from images that contain metadata
associating them with Illinois. Id. ¶¶ 21‒24. Clearview will not collect facial vectors from images
stored on servers that are displaying Illinois IP addresses or websites with URLs containing
keywords such as “Chicago” or “Illinois.” Id. ¶ 23. Clearview is also implementing an opt-out
mechanism to exclude photos from Clearview’s database. Id. ¶ 25. Clearview’s terms of use
require users of the Clearview app to, among other things, agree to only use the app for law

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enforcement purposes and to not upload photos of Illinois residents. Id. ¶¶ 11, 20. To the extent
that a user nonetheless tries to upload a photo with metadata associating it with Illinois, Clearview
will not initiate a search with that image or generate a face vector. Id. ¶ 19.
Procedural History
Plaintiff filed this putative class action on January 22, 2020. ECF No. 1. On April 8, 2020
Mutnick filed this Motion. ECF Nos. 31‒32, 39. Mutnick’s delayed timing suggests that he was
not concerned about imminent harm, but rather about positioning himself to be appointed lead
counsel in this litigation. Indeed, one day after Mutnick filed the Motion, plaintiffs’ lawyers in
New York moved to be appointed interim lead counsel. See Calderon v. Clearview AI, Inc., No.
20-cv-01296 (S.D.N.Y.), ECF No. 17. Mutnick then attempted to get plaintiffs in New York to
refile their cases in Illinois, but, not succeeding, moved to intervene and to dismiss the New York
cases, explicitly arguing that his case was further along because of his belated motion for
preliminary injunction. See, e.g., McPherson v. Clearview AI, Inc., No. 20-cv-03053 (S.D.N.Y.),
ECF No. 13, at 11‒12. The Clearview Defendants subsequently moved to dismiss for lack of
personal jurisdiction, or for a transfer to the Southern District of New York. ECF Nos. 45‒46.
In advance of submitting this brief, counsel for Clearview contacted counsel for Plaintiff
and explained the steps that Clearview is in the process of taking and that moot this Motion.
Plaintiff’s Counsel refused to withdraw his Motion. Wolosky Decl. ¶ 3. Plaintiff’s insistence on
proceeding further reveals that the Motion is little more than a litigation ploy, made in an effort to
advance a claim to lead counsel, rather than a genuine request for meritorious relief.
ARGUMENT
The Court should deny Plaintiff’s Motion because Clearview is not subject to jurisdiction
in Illinois, because the Motion is moot, because BIPA does not apply to Clearview, and because

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Plaintiff has not met his burden for obtaining an injunction.
I.

Legal Standard
“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be

granted unless the movant, by a clear showing, carries the burden of persuasion.” Goodman v. Ill.
Dep’t of Fin. & Prof’l Regulation, 430 F.3d 432, 437 (7th Cir. 2005) (quoting Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (original emphasis)). To justify this relief, Plaintiff has the
burden of showing that: (1) he has a reasonable likelihood of success on the merits; (2) no adequate
remedy at law exists; (3) he will suffer irreparable harm, which, absent injunctive relief, outweighs
the irreparable harm Clearview will suffer if the injunction is granted; and (4) the requested
injunction will not harm the public interest. Goodman, 430 F.3d at 437. Not once in a reported
case has a plaintiff suing under BIPA met this burden, and there is no reason to make this case the
first one.
II.

The Motion for a Preliminary Injunction Should Not Be Ruled upon Until
Defendants’ Jurisdictional Defenses Are Addressed

Despite knowing that Clearview is a New York company and that the individual defendants
are New York residents, Plaintiff’s Motion fails to address the threshold question of personal
jurisdiction. For the reasons given in Clearview’s Motion to Dismiss, which are adopted and
incorporated here, the Clearview Defendants are not subject to personal jurisdiction in Illinois.
ECF No. 46. As set forth in those filings, the Clearview Defendants are not subject to general
jurisdiction in Illinois because Clearview as a business is not “at home” in Illinois, and because
neither individual defendant has any relationship to Illinois. Id. at 11‒12. Specific jurisdiction is
also lacking because Plaintiff has made zero jurisdictional allegations related to the individual
defendants’ conduct in Illinois and the allegations as to Clearview are all focused on the acts of
third parties or Plaintiff, none of which are sufficient to subject Clearview to jurisdiction. Id. at

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12‒17. Plaintiff also fails to allege suit-related contacts sufficient to support specific jurisdiction;
the alleged contracts between Clearview and Illinois entities are untethered to any alleged injury
suffered by Plaintiff under BIPA. Id. at 16‒17. As a result, the Clearview Defendants are not
subject to personal jurisdiction in Illinois and cannot be enjoined by a court in Illinois. Advanced
Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 800 (7th Cir. 2014), as
corrected (May 12, 2014) (holding that for a “preliminary injunction to be valid,” the issuing court
must “have personal jurisdiction over the defendant”).
III.

Clearview Has Voluntarily Rendered the Motion Moot

Even if the Clearview Defendants were subject to personal jurisdiction, Plaintiff’s Motion
should still be denied because it is moot. Clearview addressed each and every one of Plaintiff’s
requested areas of relief. There is no need to impose an injunction because Clearview will maintain
the revised practices until the relevant legal issues are resolved.
Without admitting that BIPA applies to it, Clearview has taken steps to avoid collecting
information that originates in or is associated with Illinois (the “Illinois Information”). Mulcaire
Decl. ¶¶ 15‒22. Specifically, Clearview will no longer run facial vectors on images from servers
in Illinois and has adjusted its collection methods to avoid running facial vectors on photos with
metadata associating the photo with Illinois. Id. ¶¶ 21‒22. Clearview will also be offering Illinois
residents the ability to visit Clearview’s website and opt out of the use of their facial vectors or
images. Id. ¶ 23. Clearview has blocked access to Illinois Information until the conclusion of
these litigations. In the meantime, Clearview is taking measures to secure the Illinois Information.
Id. ¶¶ 16‒17.
Clearview is also cancelling all contracts with non-law enforcement or government entities
anywhere, as well as all contracts with all Illinois-based entities. Id. ¶ 15. Clearview’s terms of

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use require app users to agree to a series of restrictions and permissible purposes for app use, and
prohibits users from uploading images of Illinois residents. Id. ¶ 18. Plaintiff has admitted that
these changes will benefit the class. See Calderon, ECF No. 41, at 7 (acknowledging Clearview’s
changes are “to the benefit of Class Members”). Because Clearview has already addressed the
relief being sought, the Motion should be denied. See Kessler v. Pass, No. 18-cv-530, 2018 WL
5307821, at *1 (S.D. Ill. Oct. 26, 2018) (injunctions sought for conduct that defendants have
already voluntarily provided “serve no purpose” and should not be granted); White v. Rozum, No.
06-cv-244, 2007 WL 218709, at *2 (W.D. Pa. Jan. 25, 2007) (“The Court sees no point in enjoining
Defendants to do what they have already done[.]”).
IV.

Plaintiff Has Not Demonstrated That He Can Succeed on the Merits

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.
A. Clearview Is Not Subject to BIPA

Nowhere does Plaintiff’s Motion address the threshold issue of whether BIPA applies to
Clearview. Because BIPA does not apply to Clearview, Plaintiff’s Motion fails.
1. BIPA Has No Extraterritorial Effect
BIPA does not apply to Clearview for the simple reason that the alleged wrongful conduct
occurred primarily and substantially in New York, not Illinois.

As Plaintiff has admitted

elsewhere, BIPA does not have any extraterritorial application. See Calderon, ECF No. 41, at 6,
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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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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183‒87 (Ill. 2005). Illinois statutes without extraterritorial effect permit a right of action only
where the circumstances relating to the alleged violation occurred “primarily and substantially in
Illinois.” Avery, 835 N.E.2d at 852‒54. BIPA contains no express provision for extraterritorial
effect, and so it applies only to alleged violations within Illinois.
This is not a case where an out-of-state company reached into Illinois to collect information
from Illinois residents. See Neals v. PAR Tech. Corp., 419 F. Supp. 3d 1088, 1090‒91 (N.D. Ill.
2019) (plaintiff provided her fingerprint to defendant while in Illinois). Likewise, this is not a case
where an Illinois resident had an interaction with the defendant in Illinois; in fact, the Plaintiff
alleges he had no interaction with Clearview anywhere, at all. Compare Patel v. Facebook, Inc.,
932 F.3d 1264, 1276 (9th Cir. 2019) (collection occurred where users interacted with app), with
Mutnick FAC ¶¶ 27‒35 (alleging Plaintiff had no interation directly with Clearview).
Plaintiff instead alleges the obvious: that his and the putative class’ images were created in
and uploaded by devices in Ilinois. Mutnick FAC ¶ 17. Plaintiff does not and cannot allege that
he provided Clearview with any information. Clearview has no business operations or servers in
Illinois.

Mulcaire Decl. ¶¶ 2, 4.

The business activities challenged by Plaintiff occurred

undisputedly in New York, where Clearview’s offices are located and its employees transact its
business. Id. ¶¶ 2, 4. And rather than alleging actions that occurred “primarily and substantially”
in Illinois—as he must to confer jurisdiction—Plaintiff claims that Clearview “gather[ed]
information on millions of American citizens” from its headquarters in New York, “furnish[ed]
this data to law enforcement agencies throughout the United States,” and “executed agreements
with hundreds of state actors in jurisdictions throughout the country.” Mutnick FAC ¶¶ 2, 13, 38.
Plainly put, nothing that Clearview did occurred in Illinois.
extraterritorial application, Plaintiff’s Motion fails.

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Since BIPA does not have

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2. The Dormant Commerce Clause Precludes Application of BIPA
Even if BIPA had extraterritorial reach, applying BIPA to Clearview here would violate
the dormant Commerce Clause, which “precludes the application of a state statute” that has “the
practical effect of . . . control[ling] conduct beyond the boundaries of the State,” “whether or not
the commerce has effects within the State.” Healy v. Beer Inst., Inc., 491 U.S. 324, 336 & n.1
(1989). The dormant Commerce Clause prevents “inconsistent legislation arising from the
projection of one state regulatory regime into the jurisdiction of another State.” Id. at 337.
Otherwise, “any state that has chosen a policy more laissez faire than [Illinois’s] would have its
choices stymied, because the state that has chosen more regulation could always trump its
deregulated neighbor.” Morley-Murphy Co. v. Zenith Elecs. Corp., 142 F.3d 373, 379 (7th Cir.
1998).
In this case, Plaintiff asks the Court to extend the reach of an Illinois statute over commerce
conducted in other states. Doing so would “exalt the public policy of one state over that of another”
in precisely the manner prohibited by the dormant Commerce Clause. Midwest Title Loans, Inc.
v. Mills, 593 F.3d 660, 668 (7th Cir. 2010). This case presents an egregious example because
Clearview’s home state has considered BIPA-style legislation, but has never enacted it. See, e.g.,
A1911, Assemb., Reg. Sess. (N.Y. 2019); S1203, Senate, Reg. Sess. (N.Y. 2019). Plaintiff’s
claims seek to expand Illinois law “beyond the boundaries of the state” and so allow Illinois to
“tell out-of-state companies how to operate their businesses.” Legato Vapors, LLC v. Cook, 847
F.3d 825, 834 (7th Cir. 2017). Applying BIPA here would violate the dormant Commerce Clause.
3. BIPA Does Not Apply to State and Local Government Contractors
Plaintiff alleges that Clearview acted “as an agent of law enforcement,” including the
Chicago Police Department (“CPD”), and as an agent of “state actors.” Mutnick FAC ¶¶ 37-39.

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These allegations are fatal to Plaintiff’s attempted application of BIPA. BIPA expressly exempts
the conduct of “State or local government agenc[ies].” 740 ILCS 14/10. That exemption also
extends to any “contractor, subcontractor, or agent of a State agency or local unit of government
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. And if it were not an agent
of the Chicago or Ilinois governments, Clearview operates as an agent for other state and federal
entities, putting Clearview within the scope of BIPA’s exemption and outside of BIPA’s reach.
B. Plaintiff Waived Any Claim by Making His Photos Publicly Available
Once an individual makes information available to the public, he or she waives the right to
later claim that information remained personal or confidential. Smith v. Maryland, 442 U.S. 735,
743–44 (1979). Given Plaintiff’s voluntary act of making his photos public on the internet, he has
waived any right to privacy with respect to those photos.
That an individual can chose to share or discard their confidential information has long
been part of this nation’s jurisprudence. See, e.g., California v. Greenwood, 486 U.S. 35, 41 (1988)
(holding there is no reasonable expectation of privacy in items discarded outside the home); United
States v. Caira, 833 F.3d 803, 806 (7th Cir. 2016) (“[A] person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties[.]”). This jurisprudence has been
extended to the action of posting photos online. See hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d
985, 994 (9th Cir. 2019) (affirming injunction barring suit for collecting publicly-available
information from LinkedIn pages); Citizens Info. Assocs., LLC v. Justmugshots.com, No. 12-cv573, 2012 WL 12874898, at *4 (W.D. Tex. Dec. 18, 2012) (permitting access to public mugshots).

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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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The Illinois Supreme Court has recognized that a purpose of BIPA is to “vest[] in
individuals and customers the right to control their biometric information by requiring notice
before collection and giving them the power to say no by withholding consent.” Rosenbach v. Six
Flags Entm’t Corp., 129 N.E.3d 1197, 1206, 432 Ill. Dec. 654, 663 (Ill. 2019). As such, BIPA
protects material akin to “confidential and sensitive information.” 740 ILCS 14/15(e)(2). Any
information an individual makes available to the public by its very nature cannot be confidential
and cannot be expected to remain private. Cf. Bernal v ADP, LLC, No. 2017-CH-12364, 2019 WL
5028609, at *1 n.9 (Ill. Cir. Ct. Aug. 23, 2019) (“[T]here is little reason to believe that [BIPA’s]
applicability should extend beyond the point at which an individual has the right to withhold
consent.”).
Here, Plaintiff admits that he voluntarily posted his photos publicly on third-party websites.
Mutnick FAC ¶¶ 28-30. That admission undercuts any notion that Clearview “st[ole]” photos. See
id. ¶ 35. By making his photos public, Plaintiff waived his claims to their confidentiality. For
good reason, no court has held that BIPA applies to publicly-available photos—an issue wholly
ignored by Plaintiff—further diminishing Plaintiff’s likelihood of success.

BIPA, in fact,

specifically exempts photographs, 740 ILCS 14/10, meaning that regardless of whether Clearview
“stole” photographs in the public domain, those photographs cannot be the subject of a BIPA
claim.
V. Plaintiff Cannot Show a Likelihood of Success on the Merits
Plaintiff asserts he has a “high likelihood” of success on his BIPA claims because
Clearview has “no substantive defense.” ECF No. 32, at 15. For the reasons above and below,
Plaintiff is wrong.
First, Plaintiff asserts that Clearview “cannot dispute that [it] do[es] not have the requisite

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written policy regarding the retention schedule and destruction guidelines for the Biometric
Identifiers.” Id. That is flatly wrong. Clearview does have a data-retention policy, which as
described above, will cause all Illinois Information to be retained subject to the outcome of this
litigation. Mulcaire Decl. ¶ 17; see Bernal, 2019 WL 5028609, at *2 (BIPA does not identify
when a company needs to establish a retention policy).
Clearview’s downloading of photographs alone cannot violate BIPA because photographs
are exempt from BIPA. 740 ILCS 14/10. With respect to the information obtainable from
Plaintiff’s photos, Plaintiff’s collection claim fails because by making his photographs publicly
available on the internet, Plaintiff provided consent to the use of his photographs and the data
contained therein by others. See supra Section IV.B; see also 5 ILCS 175/5-105, -115 (an
“electronic record” satisfies statutory requirements for “written” documentation).
As to Plaintiff’s allegations that Clearview is disseminating biometric identifiers and
profiting from them, Mutnick FAC ¶¶ 94, 101, those fail because Clearview does not provide, sell,
or disseminate any biometric identifiers or biometric information. Mulcaire Decl. ¶ 10. BIPA’s
restrictions cannot be read to prohibit apps like Clearview’s; BIPA’s purpose is to “regulat[e]”
“biometric identifier-facilitated transactions,” not to prohibit them. 740 ILCS 14/5(c), (g); see also
740 ILCS 14/5(a) (reciting advantages of the “use of biometrics”).

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For all the foregoing reasons, Plaintiff faces an exceedingly improbable chance of success

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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on the merits of his BIPA claims. As a result, the Court should deny the Motion.
VI.

Plaintiff Has Not Demonstrated That He Lacks an Adequate Remedy at Law
To demonstrate that he lacks an adequate remedy at law, Plaintiff must show that traditional

legal remedies, like money damages, are inadequate. Roland Mach. Co. v. Dresser Indus., Inc.,
749 F.2d 380, 386 (7th Cir. 1984). Plaintiff has not done so and cannot do so. BIPA provides an
adequate remedy to Plaintiff in the form of statutory damages. See TD Bank N.A. v. Hill, 928 F.3d
259, 282 (3d Cir. 2019) (vacating permanent injunction where statutory damages provided an
adequate remedy); Zahedi v. McCalla Raymer, LLC, No. 1:15-CV-525-WSD, 2015 WL
13779036, at *2 (N.D. Ga. Feb. 27, 2015) (similar); ISM Sports, Inc. v. Provta, No. 04-cv-0918,
2007 WL 316562, at *3 (E.D.N.Y. Jan. 30, 2007) (similar).
VII.

Plaintiff Has Not Demonstrated Irreparable Harm

Plaintiff cannot obtain a preliminary injunction unless he can show that he “will suffer
irreparable harm in the interim—that is, harm that cannot be prevented or fully rectified by the
final judgment after trial.” Roland Mach., 749 F.2d at 386. In an effort to meet his burden, Plaintiff
asserts that Clearview does not properly secure personal information. ECF No. 32, at 13‒14.
Plaintiff’s allegation is belied by undisputed facts. Mulcaire Decl. ¶ 12 (Clearview has not
experienced a cybersecurity event related to any personal information). Plaintiff’s counsel’s
musings about surveillance states and loss of liberty without any factual support through
declarations or otherwise is simply not enough. Mutnick FAC ¶ 3; ECF No. 32, at 10, 13; see
Outdoor Lighting Perspectives Franchising, Inc. v. Stubbs, No. 11-cv-2524, 2012 WL 12904016,
at *2 (D.S.C. June 15, 2012) (equities are against injunctive relief where plaintiff offered “no real
specifics to support” assertion of irreparable harm); Pac. Trellis Fruit, LLC v. Agricola Yaurilla,
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).
Plaintiff ultimately does not face irreparable harm because Clearview has taken a series of
voluntary measures to identify the Illinois Information, segregate it, and to prevent the collection
or use of additional Illinois Information in the future. ECF No. 31, at 1 (requesting that Clearview
not collect biometrics from Illinois residents).

Clearview is also maintaining reasonable

safeguards to secure the Illinois Information, id. at 2 (requesting that Clearview maintain
“reasonable” security measures), and if so required, at the end of this litigation, will delete the
Illinois Information, id. at 1 (requesting that Clearview maintain a document retention policy).
Clearview does not sell, lease, trade, profit from, or disseminate any biometrics. Id. at 1-2.
Because Clearview has mooted each element of Plaintiff’s requested relief, Plaintiff will not suffer
any harm, let alone irreparable harm, if the injunction does not issue. And if Clearview’s actions
were not sufficient in some way, BIPA allows for Plaintiff’s harms to be “fully rectified” after
trial. Supra Section VI.
VIII.

The Balance of the Equities and the Public Interest Weigh Against an Injunction
The balance of the equities weighs against imposing an injunction. Unsupported by any

declarations, Plaintiff alleges that he will suffer harm without an injunction—an argument belied
by Plaintiff’s belated conduct—and disregards the harm that an injunction could have on
Clearview and its law enforcement clients who use Clearview to assist in identifying victims and
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suspects in lawful criminal investigations. ECF No. 32, at 15.
Clearview has taken reasonable steps to identify and exclude all Illinois Information from

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
business. No technology exists, for example, that would enable a company to comply with
Plaintiff’s requested relief to identify every publicly-available image belonging to an Illinois
resident on the World Wide Web, and exclude those images from an app. Photos of Illinois
residents can be uploaded from anywhere in the world, shared from website to website, and can
7

lack any geolocation information. Thus, if such relief were granted, Clearview would effectively
be precluded from using its database of publicly-available images, notwithstanding the fact that it
has put in place reasonable and comprehensive technical and practical safeguards to block the
photos and biometrics of Illinois residents and to prevent Illinois residents from accessing its app.
The equities here therefore favor denying Plaintiff’s Motion. The public would not be
served by the imposition of a court order mandating actions Clearview has already taken on its
own. See Madonna v. Acad. Collection Serv., Inc., No. 95-cv-875, 1997 WL 530101, at *11 (D.
Conn. Aug. 12, 1997) (refusing to impose injunction where defendant already voluntarily ceased
the complained-of conduct), aff’d, No. 97-9109 (2d Cir. 1998). And depriving law enforcement
agencies of Clearview’s app would be contrary to the public’s interest.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court deny Plaintiff’s
Motion for Preliminary Injunction.

7

Plaintiff apparently expects Clearview to identify Illinois residents even if they take intentional
steps not to be identified as such by hiding any electronic record of their residency. See Wolosky
Decl., Ex. 2.

15

 Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 17 of 18 PageID #:482

Respectfully submitted,

May 6, 2020

By:

/s/ Lee Wolosky ________________
Lee Wolosky (admitted pro hac vice)
Andrew J. Lichtman (pro hac vice
pending)
JENNER & BLOCK LLP
919 Third Avenue
New York, New York 10022-3908
Phone: (212) 891-1600
lwolosky@jenner.com
alichtman@jenner.com
Howard S. Suskin
David P. Saunders
JENNER & BLOCK LLP
353 North Clark Street
Chicago, Illinois 60654
Phone: (312) 222-9350
hsuskin@jenner.com
dsaunders@jenner.com
Attorneys for Defendant Clearview AI,
Inc., Hoan Ton-That, and Richard
Schwartz

16

 Case: 1:20-cv-00512 Document #: 56 Filed: 05/06/20 Page 18 of 18 PageID #:483

CERTIFICATE OF SERVICE
I certify that on May 6, 2020 I electronically filed the foregoing with the Clerk of Court
using the CM/ECF system, which will then send a Notice of Electronic Filing to all counsel of
record.

By:

17

/s/ Lee Wolosky
Lee Wolosky