STATE OF VERMONT
SUPERIOR COURT
CHITTENDEN UNIT

State of Vermont,
Plaintiff,

Index No.: 226-3-20 CNCV

v.
Clearview AI, Inc.,
Defendant.

Defendant's Reply to Vermont's Opposition to Defendant's Motion to Dismiss

Tor Ekeland
Pro Hac Vice, VT PHV No 9002002
Tor Ekeland Law, PLLC
195 Montague Street, 14th Floor,
Brooklyn, NY 11201
(718) 737-7264
tor@torekeland.com

Timothy C. Doherty, Jr., VT Bar No. 4849
Tristram J. Coffin, VT Bar No. 2445
Downs Rachlin Martin PLLC
199 Main Street, PO Box 190,
Burlington, VT 05402-0190
(802) 863-2375
TDoherty@drm.com
TCoffin@drm.com

 Table of Contents
Table of Contents ................................................................................................................ ii
Table of Authorities ........................................................................................................... iii
INTRODUCTION .............................................................................................................. 1
ARGUMENT ...................................................................................................................... 1
I.
The State Lacks Standing Because There Is No Injury ............................................. 3
A.
The State Does Not Have Quasi-Sovereign Standing ........................................... 4
B.
The State Has Alleged No Substantial Injury To The Public................................ 7
II. Vermont Has Not Adequately Pled that Clearview is Doing Business In
Chittenden County ..................................................................................................... 8
III. Communications Decency Act § 230 Preempts The Complaint ............................... 9
A.
Clearview Is An Interactive Computer Service ................................................... 11
B.
The State Treats Clearview As A Publisher ........................................................ 11
C.
CDA Immunity Exists When A Search Engine Caches Content ........................ 14
D.
Search Engines Do Not Require Text Input ........................................................ 16
E.
Clearview Is Not An Information Content Provider Because It Does Not
“Develop” Third Party Information .................................................................... 17
IV. The Complaint Fails To State A Claim Under The VCPA...................................... 21
A.
Unfairness……………………………………………………………………….21
B.
The Sperry/Christie Test for Unfairness Has Been Superseded.......................... 22
C.
The State’s Outdated Immorality Accusations Are Bad Law ............................. 25
D.
The State Fails To Show A Violation Of Well-Established Public Policy ......... 27
E.
The State Fails To State A Claim That Clearview’s Alleged Conduct Causes
Substantial Injury To Consumers ........................................................................ 29
F.
The Alleged Deceptions Are Immaterial Puffery................................................ 32
V. Vermont Violates Due Process With Its Arbitrary Application Of The VCPA ...... 34
A.
The State Alleges Conclusory Facts That Can Be Contradicted By Judicial
Notice .................................................................................................................. 35
B.
Google Has Patented Multiple Facial Recognition Algorithms Since 2011 ....... 41
VI. The State’s Privacy Theory Is Bad Law .................................................................. 41
VII. The State's Complaint Violates The First Amendment ........................................... 47
A.
The Speech At Issue Is Not Commercial Speech. ............................................... 49
B.
The State Is Engaging In Prohibited Speaker Discrimination ............................. 52
C.
The Complaint Pleads No Facts Supporting Its "Surveillance" Allegations ....... 53
D.
Clearview’s Search Engine Results Are Protected Speech Under Corley .......... 54
VIII. The State Is Silent On 20 Years Of Computer Law Contradicting Its Arguments .. 55
CONCLUSION ................................................................................................................. 56

ii

 Table of Authorities
CASES
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 555 (1982) ...................... 4, 5
Aranoff v. Bryan, 153 Vt. 59 (1989) ......................................................................................... 2, 36
Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009)....................................................... 9, 10, 32
Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) ......................................... 51
Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of N. Y., 447 U.S. 557 (1980) ......... 49
Cf. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104 (2d Cir. 2010) ............................................. 39
Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) ..................................................... 39
Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666
(7th Cir. 2008)........................................................................................................................... 11
Christie v. Dalmig, Inc.,136 Vt. 597 (1979). .......................................................................... 22, 23
Chukwurah v. Google, LLC, No. CV PX-19-782, 2020 WL 510158 (D. Md. Jan. 31, 2020) ..... 15
Citizens United v. Federal Election Committee, 558 U.S. 310 (2010) ......................................... 52
Colby v. Umbrella, Inc., 184 Vt. 1 (2008) .............................................................................. 35, 42
Colgate v. JUUL Labs, Inc., 402 F. Supp. 3d 728 (N.D. Cal. 2019) ............................................ 26
Cunningham v. Caldbeck, 63 Vt. 91 (1890) ................................................................................... 8
Denton v Chittenden Bank, 163 Vt. 62 (1994).............................................................................. 43
DOC v. New York, 139 S. Ct. 2551 (2019) ............................................................................... 7, 27
E-Ventures Worldwide, L.L.C. v. Google, Inc., 188 F. Supp. 3d 1265 (2016) ............................. 55
F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009).......................................................... 17
F.T.C. v. Sperry & Hutchinson Co., 405 U.S. 233 (1972) ............................................................ 22
Fair Hous. Council of S. F. Valley v. Roommates.com, LLC, 521 F.3d 1157
(9th Cir. 2008)……………………………………………………………………………..11, 20
iii

 Fed. Trade Comm'n v. LeadClick Media, LLC, 838 F.3d 158 (2d Cir. 2016). ....................... 12, 18
Garr v. U.S. Healthcare, Inc., 22 F.3d 1274 (3d Cir. 1994). ........................................................ 39
Geinko v. Padda, No. 00 C 5070, 2002 WL 276236 (N.D. Ill. Feb. 27, 2002). ........................... 38
Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) ............................................................. 6, 25
Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. 2009) ............................................... 19
Google, Inc. v. Hood, 96 F. Supp. 3d 584 (2015) ......................................................................... 55
Greenfield v. U.S. Healthcare, Inc., 146 F.R.D. 118 (E.D. Pa. 1993) .......................................... 39
Herrick v. Grindr LLC, 765 F. App'x 586 (2d Cir.) ............................................................... 14, 20
Hershfang v. Citicorp, 767 F. Supp. 1251 (S.D.N.Y. 1991 .......................................................... 39
HiQ Labs, Inc. v. LinkedInCorp., 938 F.3d 985 (9th Cir. 2019) ................................................... 55
In re Baldwin-United Corp. (Single Premium Deferred Annuities Ins. Litig.), 770 F.2d 328
(2d Cir. 1985) .............................................................................................................................. 5
In re Baldwin-United Corp., 770 F.2d 328 (2d Cir. 1985) ............................................................. 7
In re Beliveau NOV, 194 Vt. 1 (2013) .......................................................................................... 34
In re International Harvester, 104 F.T.C. 949, 1984 WL565290 ............................................... 23
In re Mississippi Medicaid Pharm. Average Wholesale Price Litig., 190 So. 3d 829
(Miss. 2015) .............................................................................................................................. 26
In re Optionable Sec. Litig., 577 F. Supp. 2d 681 (S.D.N.Y. 2008) ............................................. 39
In re Rusty Nail Acquisition, Inc., 186 Vt. 195 (2009). ................................................................ 34
J.O. Bilodeau & Co. v. Reed 119 Vt. 342 (1956). .......................................................................... 8
Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016)..................................... 12, 13
Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir. 2014) .............................. 12
Kaplan v. Morgan Stanley & Co., 186 Vt. 605 (2009) ................................................................... 2
LabMD, Inc. v. Fed. Trade Comm'n, 894 F.3d 1221 (11th Cir. 2018). ............................ 22, 23, 24
Louisiana v. Texas, 176 U.S. 1 (1900)............................................................................................ 5

iv

 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ............................................................................. 4
Marshall's Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263 (D.C. Cir. 2019),..................... 10
Montague v. Hundred Acre Homestead, LLC, (2019) 208 A.3d 609 ........................................... 35
Morrison v. Allen, 338 S.W.3d 417, 439 (Tenn. 2011) ................................................................ 26
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009)...................... 9
New York v. New Jersey, 256 U.S. 296 (1921) ............................................................................... 6
North Dakota v. Minnesota, 263 U.S. 365 (1923) .......................................................................... 5
Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938)............................................................... 5
Oklahoma v. Atchison, T. & S.F.R. Co., 220 U.S. 277 (1911) ....................................................... 5
Opperman v. Path, 84 Fed. Supp. 3d 962 (N.D. Cal. 2015) ......................................................... 47
Page v. Town of Newbury, 113 Vt. 336 (1943). ............................................................................. 8
Parker v. Google, Inc., 242 F. App'x 833 (3d Cir. 2007). ............................................................ 16
Parker v. Google, Inc., 422 F. Supp. 2d 492 (E.D. Pa. 2006), ............................................... 12, 16
Pennsylvania v. New Jersey, 426 U.S. 660 (1976) ......................................................................... 5
Pennsylvania v. West Virginia, 262 U.S. 553 (1923) ..................................................................... 6
Porsche Cars N. Am., Inc. v. Diamond, 140 So. 3d 1090 (Fla. Dist. Ct. App. 2014) .................. 26
Powers v. Office of Child Support, 173 Vt. 390 (2002)................................................................ 35
Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015) .................................................................... 44
Repucci v. Lake Champagne Campground, Inc., 251 F. Supp. 2d 1235 (D. Vt. 2002)................ 33
Sager v. Hous. Comm'n of Anne Arundel Cty., 957 F. Supp. 2d 627 (D. Md. 2013) ................... 25
Sandvig v. Barr, 16-CV-1368 2020 U.S. Dist. LEXIS 53631 (D.D.C. March 27, 2020)
(Sandvig II) ............................................................................................................................... 56
Sandvig v. Sessions, 315 F. Supp. 3d (D.D.C. 2018) ("Sandvig I') .............................................. 56
Sec'y, Vt. Agency of Natural Res. v. Irish, 169 Vt. 407 (1999) ..................................................... 34

v

 Severson v. City of Burlington, (2019) A.3d 102 ............................................................................ 4
Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236 (2d Cir. 2002) ............................... 2, 27, 36
Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) ............................................................. 47, 50, 51
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .............................................................................. 5
State v. Van Buren, 2018 VT 95 (2019).................................................................................. 43, 44
State v. Weinschenk, (2005) 868 A.2d 200 ................................................................................... 26
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308(2007) ................................................. 2
U.S. Bank Nat'l Ass'n v. Kimball, 190 Vt. 210 (2011) .................................................................... 4
United States v. Drew, 259 F.R.D. 449 (C.D. Ca. 2009) .............................................................. 55
United States v. Nosal,676 F.3d 854 (9th Cir. 2012) .................................................................... 55
United States v. Valle, 807 F.3d 508 (2d Cir. 2015) ..................................................................... 55
Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001).................................................... 54
Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) ................................. 13
Van Buren v. United States, 940 F.3d 1192 (11th Cir. 2019) ....................................................... 56
Walker v. S.W.I.F.T. SCRL, 517 F. Supp. 2d 801 (E.D. Va. 2007). ....................................... 39, 40
Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015) ......................................................................... 44
Wool v. Menard, 207 Vt. 25 (2018) ................................................................................................ 5
Wyoming v. Colorado, 259 U.S. 419 (1922)................................................................................... 6
Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) .............................................................. 10
Zhang v. Baidu.Com, 10 F. Supp. 3d 433 (S.D.N.Y. 2014) ................................................... 54, 55
STATUTES
15 U.S.C.§ 45(n). .................................................................................................................... 24, 27
47 U.S.C. § 230 ......................................................................................................................... 9, 11

vi

 9 V.S.A. § 2453(b) .................................................................................................................... 8, 22
Communications Decency Act § 230(c)(1) .................................................................................... 2
Federal Trade Commission Act (15 U.S.C. §45(a) ....................................................................... 18
Iowa Code § 714.16(1)(n) ............................................................................................................. 26
V.R.C.P. 10(c)............................................................................................................................... 40
V.R.C.P. 11(b). ............................................................................................................................. 39
OTHER AUTHORITIES
FTC Policy Statement on Unfairness ............................................................................................ 30
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 190 (1890)…...3
William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960)………………………………………..3

vii

 INTRODUCTION
Clearview AI hereby replies to the State of Vermont's Opposition to Clearview's Motion
to Dismiss. This Court should dismiss the Complaint with prejudice, for the reasons stated
below.

ARGUMENT
The State has pleaded no actual or imminent, particular and concrete injury. No Vermont
consumers are named as victims. No pecuniary or consequential damages are alleged. Clearview
has no customers in Vermont. The harms alleged in the Complaint are all intangible and
speculative. They have no statutory, judicial, or well-established public policy basis. If the Court
dismisses the Complaint, no Vermont Consumer will notice. And this Court can dismiss the
Complaint knowing no one's rights to sue in the future are prejudiced, should a real injury ever
occur.
The fact that dismissal will not prejudice a Vermont consumer's rights to sue in the future
should a real harm arise is a sign that there's no real case or controversy here. Quasi-sovereign or
not, the State has no legal interest here that transforms this matter into a justiciable case or
controversy. There are no actual or imminent, particular and concrete injuries. Subject matter
jurisdiction is lacking, and the State is asking the Court to issue advisory opinions.
It is difficult, if not impossible, to determine the precise nature of the Attorney General's
theories because there is no well pleaded determinate fact pattern to measure them against. It's
this lack of an empirical metric, which allows the State to shift its metric, that violates the Due
Process requirement that people be put on notice as to what the state considers illegal.
The lack of anchoring in this matter to any actual or imminent, particular and concrete
injuries leads the State to plead causes of action that are defective as a matter of law, even
1

 assuming it has standing. In coming to its decision, the Court need not credit legal conclusions
masquerading as facts, or alleged facts contradicted by facts of which the Court can easily take
judicial notice. “Courts are not required to accept as true “[c]onclusory allegations or legal
conclusions masquerading as factual conclusions” in 12(b)(6) analysis.”1 And, "it is well settled
that, in ruling on a Rule 12(b)(6) motion to dismiss, courts may properly consider matters subject
to judicial notice, such as statutes and regulations, and matters of public record."2
This is a case without any real harm; but it is not without cost. This Court should end this
unwarranted expense of judicial resources, legal fees, and costs because there is no case or
controversy here. Dismissing will not foreclose a Vermont consumer from suing Clearview
should a real injury ever arise. Dismissal will harm no consumer rights. In part, because there's
no determinate fact pattern or injury that could be cited to argue claim or issue preclusion
foreclosing future litigation.
But if the Court finds standing, the Court should still dismiss the Complaint for a number
of other reasons.
First, venue in Chittenden County is improper under the Vermont Consumer Protection
Act § 2458(a).
Second, nothing in the State’s Opposition changes the fact that it is federally preempted
under Communications Decency Act § 230(c)(1) because it treats Clearview AI's public photo
search engine as a publisher of third-party content.

1
Colby v. Umbrella Co. Inc., 184 Vt. 1 at 10 (2008) (citing to Smith v. Local 819 I.B.T. Pension Plan, 291
F.3d 236, 240 (2d Cir. 2002); Aranoff v. Bryan, 153 Vt. 59, 62–63, 569 A.2d 466, 468 (1989).
2
Kaplan v. Morgan Stanley & Co., 186 Vt. 605, 609 n.4 (2009) (citing Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007) (in ruling on a motion to dismiss, “courts must consider the complaint in its
entirety, as well as … documents incorporated into the complaint by reference, and matters of which a court may
take judicial notice).

2

 Third, as a matter of Vermont law, the Complaint pleads no valid statutory, judicial, or
well-established public policy bases that legitimize its causes of action. The Attorney General's
Complaint exceeds his delegated discretion under the Vermont Consumer Protection Act
("VCPA") and violates Due Process in the breach.
Fourth, the State argues, in its Opposition, a theory of the "expectation of privacy" not
pleaded in its Complaint. For the last 130 years since Brandeis and Warren proposed their "right
to privacy," Vermont has chosen not to establish it. 3 During this time some states did. Vermont
did not jump on the bandwagon. Vermont is absent from the list of states, Professor Prosser
compiled in 1960, that had adopted some form of the Brandeis and Warren right to privacy tort.4
The historical record implies this is a choice.
Fifth, because no reasonable person would be on notice of the State’s causes of action
because they are unestablished in Vermont. This violates the notice requirements at the heart of
Due Process.
Sixth, the State violates the First Amendment by attempting to regulate the speech of
expressive search engines that access and use information from the open internet.
Seventh, because the State ignores the last twenty years of computer case law that
contradict its causes of action.
Thus, this Court should dismiss Vermont's Complaint with prejudice.
I.

The State Lacks Standing Because There Is No Injury
No one has been injured, either tangibly or intangibly. The Court can safely dismiss this

action with the knowledge a Vermont consumer can sue Clearview, should a real injury arise in

3
4

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 190 (1890).
William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960).

3

 the future. The fact that dismissal of this matter will affect no one is a sign that there is no real
case or controversy as subject matter jurisdiction requires.5 The Court should dismiss the
Complaint because it violates constitutional, common law, and prudential standing doctrines that
require an actual or imminent, particular and concrete injury to have a cognizable cause of
action.6
The Complaint states “[t]his action is in the public interest,” and nothing more, when it
comes to standing.7 In its Opposition, the State seeks to avoid the fact that there's no case or
controversy here by claiming its quasi-sovereign, parens patriae status grants it standing to
assert claims involving the general welfare. But this confuses the right to sue with having a cause
of action. And as the cases the State cites demonstrate, quasi-sovereign status does not remove
the necessity of an actual or imminent, particular and concrete injury. The State cannot simply
declare anything it fancies "in the public interest" and litigate willy-nilly. Neither the Vermont or
Federal Constitution allow litigants, quasi-sovereign or private, to invent causes of action or
litigate causes of action when there's been no harm, and none is imminent. The cases the State
cites have actual, particular and concrete injuries, whereas the State's own case does not.
A.

The State Does Not Have Quasi-Sovereign Standing

The Attorney General cannot claim standing by declaring itself Quasi-Sovereign and thus
arrogate upon itself the power to legislate harms.8 The State hasn't articulated an interest separate

5

U.S. Bank Nat'l Ass'n v. Kimball, 2011 VT 81, ¶ 12, 190 Vt. 210, 27 A.3d 1087-90 (“our review of
dismissal for lack of standing is the same as that for lack of subject matter jurisdiction”.)
6
See, e.g., Severson v. City of Burlington, 2019 VT 41, ¶¶ 9-11, 215 A.3d 102, 105-06 ; Lujan v. Defs. of
Wildlife, 504 U.S. 555, 564 (1992) ("Where there is no actual harm, however, its imminence (though not its precise
extent) must be established.").
7
Pl. Opp. at 3.
8
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 555, 601 (1982) (“Rather, to have
such standing the State must assert an injury to what has been characterized as a “quasi-sovereign” interest, which is
a judicial construct that does not lend itself to a simple or exact definition. Its nature is perhaps best understood by

4

 from the interests of particular private parties and thus doesn't have parens patriae, or any other
type of quasi-sovereign standing.9
The crux of quasi-sovereign standing lies in the type of interest sought to be enforced.
The courts have held that the “concept does not involve the State’s stepping in to represent the
interests of particular citizens who, for whatever reason, cannot represent themselves,” and
indeed such an interest would render the State a nominal party and thus without standing.10 Nor
does the interest lie in exercising power over individuals and entities within their jurisdiction
through creating and enforcing legal codes,11 the maintenance and recognition of borders,12 or
proprietary interests in State owned land.13 Quasi-sovereign interests consist of the interest a
State has in the well-being of its populace such that there exists an actual case in controversy
between the State and the defendant.14 These harms, like for every Article III case, must be
actual or imminent, particular and concrete.15 Quasi-sovereign interests have only ever been
found in cases of clearly defined public health, financial, or economic wellbeing issues for which

comparing it to other kinds of interests that a State may pursue and then by examining those interests that have
historically been found to fall within this category.”) (hereinafter “Alfred”)).
9
In re Baldwin-United Corp. (Single Premium Deferred Annuities Ins. Litig.), 770 F.2d 328, 341 (2d Cir.
1985) ("To start with, when the state merely asserts the personal claims of its citizens, it is not the real party in
interest and cannot claim parens patriae standing"); see also Alfred, 458 U.S. at 600, 602; Pennsylvania v. New
Jersey, 426 U.S. 660, 665 (1976) (declining to find the state the real party in interest for the purpose of original
Supreme Court jurisdiction when the state was attempting to vindicate the individual rights of its citizens);
Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938) (same).
10
Alfred, 458 U.S. at 600 (citing Pennsylvania v. New Jersey, 426 U.S. 660 (1976); Oklahoma ex rel.
Johnson v. Cook, 304 U.S. 387 (1938); and Oklahoma v. Atchison, T. & S.F.R. Co., 220 U.S. 277 (1911).
11
Alfred, 458 U.S. at 600.
12
Id.at 601.
13
Id.
14
Id.at 602.
15
See Alfred, 458 U.S. at 602; Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016); Wool v. Menard, 2018
VT 23, ¶ 20, 207 Vt. 25, 36, 185 A.3d 577, 585.

5

 there is no other remedy.16 The harms addressed in the case law involve actual or imminent,
particular and concrete injuries to the health of citizens or their finances.
A key consideration in determining if quasi-sovereignty and parens patriae standing is
the lack of other options. The fundamental cornerstone of the exercise of quasi-sovereignty is the
inability of the legislature to act to preserve the rights of citizens without the exercise of
executive quasi-sovereign authority. In the case of Puerto Rico in Alfred, it was forced to sue to
ensure full participation of its citizens in a determinate statutory scheme.17
Vermont has chosen not to recognize a "right to privacy." The Attorney General should
not be dictating the meaning of this controversial phrase in the place of the Vermont legislature.
Vermont has had 130 years since Brandeis and Warren proposed a right to privacy and has never
recognized it. Vermont presumably is aware of the states that have adopted versions of the right
to privacy, intrusion upon seclusion tort it seeks.18 The State cannot now step in parens patriae
and quasi-sovereign to protect interests of citizens where the legislature chose not to and there is
no public consensus as to the legal interests it seeks to assert.
As for the right to privacy for intrusion upon seclusion, if a citizen can enforce their own
private rights through a proscribed cause of action then quasi-sovereignty melts into
“representation of the interests of particular citizens” and the State becomes a nominal party

16

See Louisiana v. Texas, 176 U.S. 1 (1900) (freedoms and rights associate with interstate commerce);
Missouri v. Illinois, 180 U.S. 208 (1901) (pollution of public waters); North Dakota v. Minnesota, 263 U.S. 365
(1923) (prohibiting Minnesota from using drainage ditches because it was causing overflow in North Dakota);
Wyoming v. Colorado, 259 U.S. 419 (1922) (prohibiting diversion of an interstate river); New York v. New Jersey,
256 U.S. 296 (1921) (sewage drainage into another State); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907)
(air pollution); Pennsylvania v. West Virginia, 262 U.S. 553 (1923) (cutting off access to natural gas for citizens of
another state); Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) (restraint of trade via railroad);
17
Alfred, 458 U.S. at 609 ("Alternatively, we find that Puerto Rico does have parens patriae standing to
pursue the interests of its residents in the Commonwealth's full and equal participation in the federal employment
service scheme established pursuant to the Wagner-Peyser Act and the Immigration and Nationality Act of 1952).
18
See, e.g., William L. Prosser, Privacy, 48 CAL. L. REV. 383 (1960).

6

 without standing.19 The State is asserting causes of action under the guise of parens patriae that
Vermont citizens could sue for on their own - assuming they were valid as a matter of law.
B.

The State Has Alleged No Substantial Injury to the Public

The Second Circuit holds that part of the analysis for determining quasi-sovereign
standing is to look for substantial injury:
The State may show such an interest by alleging "injury to a sufficiently substantial
segment of its population." However, "if the State is only a nominal party without
a real interest of its own—then it will not have standing under the parens patriae
doctrine."20
The unrecognized intrusion upon seclusion privacy tort the State is arguing for here is
just such a private interest - its very name indicates that it’s predicated-on intrusion into
someone's private space. This is not an appropriate cause of action for parens patriae standing.
Here, the State hasn't alleged an "injury to a sufficiently substantial segment of its population." If
there is such a wide swath of injury from Clearview's alleged actions, you would expect there to
be at least one named Vermont consumer.
The State mistakes the power to sue with a having a cause of action. States can sue as a
quasi-sovereign under legal fictions like parens patriae but only if they have a valid legal
interest that a court has subject matter jurisdiction over.21 The State is only a nominal party to the
private legal interest it is suing over, and that interest hasn't been endorsed by the Vermont
legislature, judiciary, or public.

19

Alfred, 458 U.S. at 600.
Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 215 (2d Cir. 2013) (citation omitted); see also In re
Baldwin-United Corp., at 341 ("[W]hen the state merely asserts the personal claims of its citizens, it is not the real
party in interest and cannot claim parens patriae standing.").
21
See, e.g., DOC v. New York, 139 S. Ct. 2551, 2565 (2019) ("To have standing, a plaintiff must “'present
an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged
behavior; and likely to be redressed by a favorable ruling.'" (citation omitted)).
20

7

 II.

Vermont Has Not Adequately Pled that Clearview is Doing Business in Chittenden
County
This Court should dismiss the Complaint because it doesn't properly plead venue under

the Vermont Consumer Protection Act. VCPA section 2458(a) provides that “[t]he action
[seeking an injunction] may be brought in the Superior Court of the county in which such person
resides, has a place of business or is doing business.”22 The People of Vermont enacted the
VCPA into law, with limitations on the ability of the prosecutor to bring actions under the it,
only against such defendants.
The State seems to have ignored this provision. Neither its Complaint, nor its motion in
support of a preliminary injunction, nor its opposition to Clearview’s Motion to Dismiss pleads
this matter in anything other than in a conclusory way.23 These conclusory allegations are devoid
of any facts showing how, what, or where Clearview “is doing business” in Chittenden County.
While Clearview has chosen not to contest personal or subject matter jurisdiction or
venue generally in this court, it has consistently contested whether the State can proceed under
the VCPA on the basis that it has not properly pled facts showing that Clearview is doing
business within the meaning of the VCPA in Chittenden County. That makes the only case cited
by the State, J.O. Bilodeau & Co. v. Reed24 distinguishable, and makes this situation more
analogous to cases where the lack of county citizenship, if pleaded, was found to be decisive
such as Page v. Town of Newbury25 and Cunningham v. Caldbeck.26 Accordingly, given this
defect, while the State may be able to bring some causes of action against Clearview in

22
23

9 V.S.A. § 2453(a).
See Compl. at ¶ 9 (“Venue in this Court is proper because the Defendant does business in Chittenden

County.”).
24

J.O. Bilodeau & Co. v. Reed, 119 Vt. 342 (1956).
Page v. Town of Newbury, 113 Vt. 336 (1943).
26
Cunningham v. Caldbeck, 63 Vt. 91 (1890).
25

8

 Chittenden County if it meets the appropriate pleading standards, it cannot bring an action under
section 2458 of the VCPA, including its provisions for an injunction and statutory penalties, in
this Court based on the manner in which this claim is pled.
III.

Communications Decency Act § 230 Preempts the Complaint
Clearview’s search engine, offering users the ability to perform reverse image searches of

information provided by third parties, is the kind of innovation that Congress chose to
incentivize when it passed the Communications Decency Act more than twenty-five years ago.27
The State seeks to undermine this well settled legal regime by recycling arguments that plaintiffs
throughout the country have already attempted.
The Federal Communications Decency Act § 230 ("CDA") states, “[n]o provider or user
of an interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider.”28 This broad, almost absolute immunity
preempts state laws to the contrary.29 Simply put, “the CDA bars the institution of a cause of
action or imposition of liability under ‘any State or local law that is inconsistent’ with the terms
of § 230.”30
Courts use a three-prong test for Section 230 immunity.31 Immunity from liability exists
for a “(1) provider or user of an interactive computer service (2) whom a plaintiff seeks to treat,
under a state law cause of action, as a publisher or speaker (3) of information provided by

27

47 U.S.C.A. § 230(b)(1), (“It is the policy of the United States to promote the continued development of
the Internet and other interactive computer services and other interactive media”).
28
47 U.S.C. § 230 (c)(1).
29
47 U.S.C. § 230 (e)(3) (“Nothing in this section shall be construed to prevent any State from enforcing
any State law that is consistent with this section. No cause of action may be brought, and no liability may be
imposed under any State or local law that is inconsistent with this section.”).
30
See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009).
31
Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009).

9

 another information content provider.”32 The State concedes that Clearview is an interactive
computer service, but denies that it is attempting to hold it responsible as a publisher of
“information provided by another information content provider.”33
Under Section 230, “lawsuits seeking to hold a service provider liable for its exercise of a
publisher's traditional editorial functions—such as deciding whether to publish, withdraw,
postpone or alter content—are barred.”34 The State is seeking to hold Clearview responsible for
the “traditional editorial function” of the publication of images. In the context of § 230,
“publication involves reviewing, editing, and deciding whether to publish or to withdraw from
publication of third-party content.”35
The State’s core arguments are that Clearview’s decision to publish images will
constitute an invasion of privacy and that Clearview’s image removal policies will mislead
consumers – both concerns pertain to Clearview’s role as publisher. For example, the State
complains that Clearview has acknowledged it possessed “brokered personal information of
minors.”36 Clearview elaborated that this information consisted of, “publicly available images of
minors.”37 The State goes on to admit that there is “no statute in force that would require
Clearview to honor an opt-out request made on behalf of a Vermont minor.”38 The State goes on
to claim that social norms render this problematic, while avoiding the central issue: the State is
attempting to dictate what Clearview can and cannot publish and is attempting to hold it liable
for those very publication decisions.

32

Id. at 1100-01.
Pl. Opp. at 15.
34
Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).
35
Barnes, 570 F.3d at 1102, as amended (Sept. 28, 2009).
36
Compl. at ¶ 48.
37
Id. at ¶ 50.
38
Id. at ¶ 51.
33

10

 Assessing § 230 immunity is appropriate at the Motion to Dismiss stage.39 As the Fourth
Circuit has explained Section 230 “immunity is an immunity from suit rather than a mere
defense to liability and it is effectively lost if a case is erroneously permitted to go to trial.”40 The
Ninth Circuit has noted that without this immunity, Internet services will “face death by ten
thousand duck-bites.”41 Though the Ninth Circuit was imagining a cascade of lawsuits brought
by individual plaintiffs, it is equally applicable to the State’s attempt to undermine a general
Federal statutory scheme.42
A.

Clearview is an Interactive Computer Service

The CDA defines an interactive computer service ("ICS") as “any information service,
system, or access software provider that provides or enables computer access by multiple users
to a computer server.”43 Clearview's AI public photo search engine fits this definition.
B.

The State Treats Clearview as a Publisher

The State claims that its causes of action for unfairness, deception and fraudulent
acquisition of data against Clearview, “are not based on information published by another
information content provider” and that that its claims have “nothing to do with speaking or
publication.”44 It also claims that "the photographs themselves, as they were posted on the
internet by their owners, are not injurious, and do not give rise to any of the State’s claims."45

39

See Marshall's Locksmith Serv. Inc. v. Google, LLC, 925 F.3d 1263, 1267 (D.C. Cir. 2019),
(“[c]onsistent with Congress’ intent to confer broad immunity for the re-publication of third-party content, internet
services may invoke § 230 immunity as grounds for dismissal under Federal Rule of Civil Procedure 12(b)(6).”).
40
Nemet Chevrolet, 591 F.3d at 254 (internal quotation marks omitted).
41
Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir.
2008) (en banc).
42
Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir.
2008), as amended (May 2, 2008),( “the reason a legislature writes a general statute is to avoid any need to traipse
through the United States Code and consider all potential sources of liability, one at a time.”).
43
47 U.S.C. § 230(f)(2).
44
Pl. Opp at 22-23.
45
Pl. Opp at 16.

11

 These assertions miss the point; the State seeks to hold Clearview responsible for the fact that it
republishes publicly accessible information that the state considers potentially harmful. This is
firmly within the understanding of the, “capacious conception of what it means to treat a website
operator as the publisher or speaker of information provided by a third party.”46 Regardless of
how the claims are styled, “[a]t its core, § 230 bars ‘lawsuits seeking to hold a service provider
liable for its exercise of a publisher’s traditional editorial functions: such as deciding whether to
publish, withdraw, postpone, or alter content.’”47
Clearview uses an algorithm to make social media pictures searchable. When a user
performs a search using an image, Clearview merely publishes the appropriate results, using
techniques that are indistinguishable from those used by other search engines.48 For policy
reasons, the State believes that Clearview should not be able to steer its users towards relevant
information. That it styles its claims as unfairness and deception is beside the point, because,
“[t]he ultimate question, though, does not depend on the form of the asserted cause of action;
rather, it depends on whether the cause of action necessarily requires that the defendant be
treated as the publisher or speaker of content provided by another.”49 The State’s essential
argument remains that Clearview’s search engine will inevitably cause privacy harms, a harm
necessarily derived from Clearview’s publication decisions. It admits as much in its Opposition
when it notes, “the State relies on the broader right to privacy as a basis for its primary
unfairness claim”.50 In addition to explicitly citing invasion of privacy as a component of its

46

Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 19 (1st Cir. 2016).
“LeadClick Media, LLC, 838 F.3d at 174 (quoting Jones v. Dirty World Entm’t Recordings LLC, 755
F.3d 398, 407 (6th Cir. 2014)).
48
Parker v. Google, Inc., 422 F. Supp. 2d 492, 495 (E.D. Pa. 2006), aff'd, 242 F. App'x 833 (3d Cir. 2007),
(“Google's proprietary technology produces a list of hyperlinks organized by their relevance and reliability.”).
49
Jane Doe No. 1, 817 F.3d at 19 (1st Cir. 2016) (rejecting argument that website was an information
content provider when it ran advertisements provided by third parties).
50
Pl. Opp. at 47.
47

12

 allegation for unfair acts, the State claims that Clearview is, “violating the civil rights of
consumers by chilling their freedom of assembly and political expression,” and “exposing
citizens to threats of surveillance, stalking, harassment and fraud.”51 These harms, which can
only occur because other Information Content Providers independently uploaded and distributed
photographs, are hypothetical consequences of invasion of privacy. Clearview’s decision to
republish them in a searchable format is the reason that the State brings its claims.
The State also attempts to hold Clearview responsible as a publisher when it attacks its
policy regarding content removal. The caselaw around § 230 is exceedingly clear; a plaintiff
seeking to dictate an ICS’s removal policies is attempting to hold it responsible as a publisher.52
The States notes that there is no statute in force in Vermont to mandate the removal of images of
minors, while also stating that “Clearview does not yet have the capability to remove individuals
by geographic region or age.”53 The State sought a court order to compel Clearview to “cease
collecting all photos of Vermonters, including Vermont children” and to “delete or destroy all
photos and facial recognition identifiers of Vermonters from its app and/or database, including
Vermont children.”54 The demands in the since withdrawn motion for preliminary injunction
unambiguously demonstrate that the State’s goal was to dictate what Clearview could and could
not publish by mandating the removal of information. The State took issue with Clearview’s
removal policy and, unsatisfied with Clearview’s compliance, brought an action. But any attempt

51

Compl. at ¶ 24.
See, e.g., Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 21 (1st Cir. 2016) (claims barred by § 230
because the lack of safety features reflects “choices about what content can appear on the website and in what
form,” which are “editorial choices that fall within the purview of traditional publisher functions”); Universal
Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007) (“[the] decision not to reduce misinformation
by changing its web site policies was as much an editorial decision with respect to that misinformation as a decision
not to delete a particular posting”).
53
Compl. at ¶ 51.
54
Pl. Motion for Preliminary Injunction, at 60.
52

13

 by the State to hold Clearview responsible for what it views as inadequate responses to its policy
preferences are barred by § 230.55
C.

CDA Immunity Exists When A Search Engine Caches Content

The State would read a requirement into the Section 230 that, “the Information Content
Provider posted the offensive information on the defendant’s servers.”56 The word “provided” is
not synonymous with “posted.” Clearview has already cited numerous search engine CDA cases
in which a plaintiff sought to hold search engines responsible for content that they cached or
indexed. In Parker v. Google, Plaintiff sought to hold Google liable for content that the search
had indexed, cached, and presented to users in “snippet” form.
In Parker, and numerous other cases, Google had independently retrieved and processed
information; no person or entity had proactively “placed” information on Google. Google
contains billions of cached webpages. In a section on their website, titled “About Cached Links,”
Google explains this process, writing “Google takes a snapshot of each web page as a backup in
case the current page isn't available…If you click a link that says “Cached,” you’ll see the
version of the site that Google stored.”57 This cached page is stored on Google’s servers. The
State’s attempts to redefine a core search engine functionality – caching materials provided by
third parties – as something nefarious and unusual is mere rhetoric. When the State complains
that Clearview was, “not given these photographs by the third party,” it is irrelevant to the CDA
analysis.58

55

See Herrick v. Grindr LLC, 765 F. App'x 586, 591 (2d Cir.), holding that complaints based on inadequate
response by defendant are barred by the CDA, “Grindr’s allegedly inadequate response to Herrick’s complaints…are
barred because they seek to hold Grindr liable for its exercise of a publisher’s traditional editorial function.”
56
Pl. Opp. at 17 (emphasis added).
57
See VIEW WEB PAGES CACHED IN GOOGLE SEARCH RESULTS,
https://support.google.com/websearch/answer/1687222?hl=en (last visited May 22, 2020).
58
Pl. Opp at. 17.

14

 Courts find no difficulty in dismissing claims that seek to hold search engines responsible for
content they obviously did not create.59 In an unpublished decision, the District Court of
Maryland rejected a pro se petitioner’s defamation lawsuit against Google, for linking to what he
described as “fraudulent documentation” posted by the Clerk of the Circuit Court in Prince
George’s County, Maryland. Plaintiff alleged that Google had defamed him by referring to him
as, “a triple murderer serving 50 years in a Maryland prison” by linking to the county clerk’s
website that accurately reflected documentation showing that the plaintiff had been sentenced to
fifty years in prison for first degree murder. The Court explained that, “[a]ssuming the
Complaint facts are true and construed most favorably to [plaintiff], the Court, at best, may
plausibly infer that Google amounted to the search engine which linked [plaintiff’s] name to
content created and published by the Circuit Court.”60 Google was no more responsible for the
allegedly defamatory content provided by another information content provider, than Clearview
is responsible for photographs that are allegedly invasive of privacy provided by another
information provider. As explained supra, the State would construe the republication of publicly
posted social media images on a search engine as necessarily violative of a right to privacy.61 Put
another way, the State considers the social media images that may identify the persons depicted,
as offensive conduct that violates the right to privacy. This state law claim is analogous to the
claims for defamation and fraud that are regularly rejected by Courts in the CDA context.
In a similarly defeated search engine claim, Parker v. Google, a plaintiff, “alleged that
Google invaded his privacy by creating an unauthorized biography of him whenever someone

59

Pl. Opp. at 24-25.
Chukwurah v. Google, LLC, No. CV PX-19-782, 2020 WL 510158, at *2 (D. Md. Jan. 31, 2020).
61
See Pl. Preliminary Injunction at 26-27, stating that “[a]n invasion of privacy is an actionable tort in
Vermont…[Clearview’s conduct] violates Vermonters’ common law right to privacy, including an intrusion upon
Vermonters’ seclusion.”
60

15

 “googled” his name into the search engine.”62 This putative biography was created, “because the
act of Google users putting in a search query of his name leads Google to produce a list of
websites in which his name appears.”63 The State wants to hold Clearview legally liable for
“producing a list of websites” in which images of a searched person appear. It is that simple.
Parker’s claims were easily dismissed because republishing information is protected by the
CDA, and Clearview should be too.
D.

Search Engines Do Not Require Text Input

Clearview cited the definition of search engine that states it is “computer software used to
search data (such as text or a database) for specified information,” because it accurately reflects
the evolving capacity of search engine technology. The State relies on definitions of “search
engine” that require textual input.64 This overlooks that reverse image search technology is a
type of search engine that uses an image as the input query.65 Google’s Image Search has been
capable of “reverse image search” for almost a decade.66 This technology allows a user to drag
an image into the search bar (without any text) and Google will return results. eBay, a major
online retailer, offers an app that enables users to search via image.67 A smaller company,

62

Parker, 242 F. App'x at 838.
Parker, 422 F. Supp. 2d at 500.
64
Pl. Opp. at 20-21.
65
See REVERSE IMAGE SEARCH, https://en.wikipedia.org/wiki/Reverse_image_search, (last visited May 22,
2020) (stating “Reverse image search is a content-based image retrieval (CBIR) query technique that involves
providing the CBIR system with a sample image that it will then base its search upon; in terms of information
retrieval, the sample image is what formulates a search query.”).
66
See Stephen Chapman, Google rolls out reverse image search: RIP Tineye, ZDNET.COM (June 22, 2011),
accessible https://www.zdnet.com/article/google-rolls-out-reverse-image-search-rip-tineye/.
67
See, Steve Neola, Ben Klein and Max Manco, Find It On eBay: Using Pictures Instead of Words,
EBAY.COM (July 26, 2017), https://tech.ebayinc.com/product/find-it-on-ebay-using-pictures-instead-of-words/.
63

16

 TinEye, has been offering reverse image search since 2008.68 TinEye claims to run its reverse
image search on more than 41 billion images.69
As online dating exploded in popularity, using reverse image search to ascertain whether an
image was authentic became a popular, common sense recommendation.70 Users were told to
utilize reverse image technology to determine whether a prospective romantic interest was who
they said they were. Clearview is simply a technological evolution of an already accessible
technology. This point is worth reiterating as the State insists that the Court adopt an outdated
understanding of search technology that is rooted in the limitations of the 1990s.
E.

Clearview Is Not an Information Content Provider Because It Does Not
“Develop” Third Party Information

The State is complaining about photos published on the open internet, which it alleges
require the consent of those photographed to access, even if the photographed have no
intellectual property rights in the photo because they are not its creators for purposes of
copyright law. Nowhere in the causal chain that creates the content at issue here, photos and the
facial biometric algorithms used to analyze them, is Clearview involved in the creation of the
photos. The Information Content Provider is not Clearview, even by the State’s elastic
definitional standards.
Even under the most expansive reading of the term, Clearview does not “develop”
information within the meaning of the CDA § 230. The State cites Accusearch,71 for the

68

See TinEye: the ‘go to’ search engine for images, TINEYE BLOG (Oct. 14, 2008),
https://blog.tineye.com/tineye-the-go-to-search-engine-for-images/.
69
See Frequently Asked Questions, accessible at https://tineye.com/faq#count, (last accessed May 22, 2020)
(claiming “TinEye has indexed 41,241,225,164 images from the web.”).
70
See T. Christian Miller, The Dig: How to Background Your Tinder Dates, ProPublica (May 11, 2016),
https://www.propublica.org/article/the-dig-how-to-background-your-tinder-dates (Noting that by performing a
reverse image search, “[y]ou often get back search results that reveal the person’s full name, or workplace.”).
71
F.T.C. v. Accusearch Inc., 570 F.3d 1187 (10th Cir. 2009).

17

 proposition that the operator of a website can be precluded from CDA § 230 immunity if it takes
part in the “development” of information at issue in a suit.
Clearview’s product and conduct are entirely distinguishable from the facts in
Accusearch. In that case, Defendant Accusearch operated a data broker website that advertised
its capacity to procure confidential telephone records. Consumers placed an order through
Accusearch’s website, Accusearch then retained and paid third-party researchers to procure the
confidential information. The Federal Trade Commission brought claims against Accusearch for
unfair practices under the Federal Trade Commission Act,72 arguing that consumers were harmed
by the disclosure of information that was intended to remain confidential.73 Accusearch should
be read for the proposition that selling possibly illicit third-party information is sufficient to
deprive an ICS of its § 230 immunity. The Second Circuit summarized the rule of Accusearch as
“a defendant who paid researchers to uncover confidential phone records protected by law, and
then provided that information to paying customers, fell within the definition [of an information
developer] because he did not merely act as a neutral intermediary, but instead ‘specifically
encourage[d] development of what [was] offensive about the content.”74 The encouragement
consisted of actually paying third parties to procure confidential information. Accusearch
represents an unusually expansive reading of the CDA that was based on the actual, particular,
concrete injuries at issue. Accusearch functionally adopted the plaintiff-friendly rule and
reasoning from the Ninth Circuit.
To balance the expansive definition of “develop” in Accusearch, the Tenth Circuit
adopted a more restrictive definition of responsibility (with regards to the development of

72

Federal Trade Commission Act (15 U.S.C. §45(a)).
See Accusearch 570 F.3d at 1191.
74
LeadClick Media, LLC, 838 F.3d at 174.
73

18

 offensive content) when determining whether liability would be forfeit. Because CDA immunity
is contingent on not being “responsible, in whole or in part, for the creation or development of
information.” The Court held that an ICS could only be considered “responsible if it is more than
a neutral conduit for that content.”75 That is, one is not responsible for the development of
offensive content if one's conduct was neutral with respect to the offensiveness of the content.”76
Clearview is neither encouraging unlawful conduct by its users nor enabling access to
confidential information in which viewers have an expectation of privacy. Clearview is a neutral
tool that does nothing to render globally accessible information content “offensive.”
Accordingly, “a plaintiff may not establish developer liability merely by alleging that the
operator of a website should have known that the availability of certain tools might facilitate the
posting of improper content."77 This is precisely what the State seeks to do in imagining that
Clearview’s neutral tool will be used for improper searches, while ignoring that Clearview is
merely an image search function through which a user inputs information (a photograph) and is
served results (existing public photographs). It does not impute new meaning to the images
retrieved that may render them offensive. Nor does it have an option to filter for nude
photographs or “unpublished photographs” or “embarrassing photographs” that might encourage
its users to engage in unlawful behavior.
One way the Ninth Circuit analyzes search engine neutrality is by comparing it with a
website that mandates users make discriminatory choices: “[i]f an individual uses an ordinary
search engine to query for a ‘white roommate,’ the search engine has not contributed to any
alleged unlawfulness in the individual's conduct; providing neutral tools to carry out what may

75

Accusearch Inc., 570 F.3d at, 1189.
Id.
77
Goddard v. Google, Inc., 640 F. Supp. 2d 1193, 1198 (N.D. Cal. 2009).
76

19

 be unlawful or illicit searches does not amount to ‘development’ for purposes of the immunity
exception.”78 Clearview is just such a neutral search tool. The Second Circuit summarized this
reasoning in a non-precedential opinion as stating that, “under § 230 an ICS will not be held
responsible unless it assisted in the development of what made the content unlawful and cannot
be held liable for providing neutral assistance in the form of tools and functionality available
equally to bad actors and the app’s intended users.”79
It is worth reiterating that every image searchable by Clearview was information shared
by an independent actor who should have considered whether the posted photograph was
“illegal” or “unlawful” or “offensive.” The person who posted a headshot on their LinkedIn
profile is a prototypical Information Content Provider, and Clearview played no role in
encouraging the creation of any third-party information post. The harm feared by the State is, in
essence, that a user can use Clearview’s search function to associate an individual to their
LinkedIn profile via reverse image search, which it spuriously claims is a privacy violation. Even
in the hypothetical that the State constructs – in which an unknowing person is unscrupulously
photographed eating at a restaurant which is later uploaded to social media without their consent
– the Information Content Providers that can be held accountable are either the photographer or
the uploader. Clearview has never encouraged any Information Content Provider to upload an
image. Nor do the Complaint allege Clearview has.
Finally, Clearview cannot be considered a developer of information merely because its
algorithm translates photographs into a machine searchable code. As a preliminary matter,
“automated editorial act[s]” of search engines are generally immunized under the Act.”80 The

78

Roommates.Com, LLC, 521 F.3d at 1169.
Herrick, 765 F. App'x at 591 cert. denied, 140 S. Ct. 221 (2019) (internal quotations omitted).
80
Marshall's Locksmith, 925 F.3d at 1271.
79

20

 D.C. Circuit recently held that translating third-party information (a business’s claim to operate
within a particular zip code) to map pinpoints falls within § 230 immunity. The court explained,
“[t]he decision to present this third-party data in a particular format – a map – does not constitute
the “creation” or “development” of information for purposes of § 230(f)(3). The underlying
information is entirely provided by the third party, and the choice of presentation does not itself
convert the search engine into an information content provider. Indeed, were the display of this
kind of information not immunized, nothing would be: every representation by a search engine
of another party’s information requires the translation of a digital transmission into textual or
pictorial form.”81 The D.C. Circuit also noted that, “translation of third-party information into
map pinpoints does not convert them into ‘information content providers’ because defendants
use a neutral algorithm to make that translation.”82 If converting through text neutral algorithm
(the information that the business operates in a given zip code) map points is protected, then it
can be argued that translating images through a neutral algorithm into searchable code should
also be protected. The “output” of Clearview’s search is a simple republication of an existing
image posted by a third-party user.
IV.

The Complaint Fails to State A Claim Under the VCPA
A.

Unfairness

The State claims that Clearview violated the VCPA by engaging in “unfair” conduct.83
Although the Complaint lists Clearview’s purportedly unfair acts, the principal thrust of the
Complaint is that Clearview “invad[es] the privacy of consumers”84 through its service, which

81

Id. at 1269.
Id. at 1270.
83
Compl. at ¶¶ 76-78.
84
Compl. at ¶ 78(c).
82

21

 indexes public photos from the internet and then employs a facial biometric algorithm to search
those cached public photos. The State has failed to state a legally cognizable claim and Count
One should therefore be dismissed.
B.

The Sperry/Christie Test for Unfairness Has Been Superseded

In support of its deficient unfairness claim, the State incorrectly urges this Court to adopt
the Sperry/Christie test for unfairness. In construing the term “unfair” in the VCPA, Vermont
courts must “be guided by the construction” of the same term in “the Federal Trade Commission
Act as from time to time amended by the Federal Trade Commission and the courts of the United
States.”85 In the more than 40 years since F.T.C. v. Sperry & Hutchinson Co.86 and Christie v.
Dalmig, Inc.87 were decided, the Federal Trade Commission Act’s unfairness test has been
amended significantly and the changes have been recognized by federal courts. The State cannot
wish these important changes away. Pursuant to the clear and unambiguous language of the
VCPA, this Court must construe the term “unfair” in a manner consistent with current federal
law.88
“In 1964, the FTC set forth three factors to consider in deciding whether to wield its
unfairness authority. The FTC was to consider whether an act or practice (1) caused consumers,
competitors, or other businesses substantial injury; (2) offended public policy as established by
statute, the common law, or otherwise; and (3) was immoral, unethical, or unscrupulous.”89 In
1972, the Supreme Court cited these factors with approval in dicta in Sperry. 90 The Vermont

85

9 V.S.A. § 2453(b).
F.T.C. v. Sperry & Hutchinson Co., 405 U.S. 233 (1972).
87
Christie v. Dalmig, Inc.,136 Vt. 597, 396 A.2d 1385 (1979).
88
9 V.S.A. § 2453(b).
89
LabMD, Inc. v. Fed. Trade Comm'n, 894 F.3d 1221, 1228 (11th Cir. 2018).
90
Sperry, 405 U.S. at 244.
86

22

 Supreme Court relied the Sperry factors in the 1979 Christie case to strike down an overly broad
rule the Vermont Attorney General’s Office had promulgated pursuant to the VCPA.91
But the FTC’s unfairness test has not remained frozen in caselaw from the late 1970s.
“Emboldened by the Sperry & Hutchinson’s dicta,” in 1978, the FTC attempted to “use
unfairness to ban all advertising directed to children on the grounds that it was ‘immoral,
unscrupulous, and unethical’ and based on generalized public policies to protect children.”92 The
FTC’s attempt to set public policy and dictate to the American public what type of advertising
was immoral provoked an extraordinary backlash from the public and Congress.93 In fact, the
FTC’s overreach proved so toxic that, for a time, Congress refused to fund the FTC.94
As a result of this backlash, the FTC was forced to amend the three-factor Sperry/Christie
unfairness test significantly.95 The FTC first did so in a 1980 letter to U.S. Senators (the
Unfairness Policy Statement).96 The Unfairness Policy Statement emphasizes that the first
factor—consumer injury—is the principal focus of the unfairness test.97 With respect to this
factor, the FTC sets forth a separate three-part test that defines a qualifying consumer injury: (1)
the injury must be substantial; (2) it must not be outweighed by any countervailing benefits to

91

Christie, 136 Vt. at 601. The rule at issue in Christie provided that the failure of a “seller or solicitor to
honor his express and implied warranties . . . constitutes an unfair and deceptive trade act and practice.” The Court
acknowledged that the FTC’s guidance regarding the Sperry factors was still developing but held that “the case at
bar presents no unfairness under any construction of these factors” and that the rule was “too broad.” Id. at 600-601.
92
LabMD, 894 F.3d at 1228; see also J. Howard Beales (Former Director, Bureau of Consumer Protection),
The FTC’s Use Of Unfairness Authority: Its Rise, Fall, and Resurrection at Section II. A (May 30, 2003),
https://www.ftc.gov/public-statements/2003/05/ftcs-use-unfairness-authority-its-rise-fall-and-resurrection#N_43_.
93
Id.
94
Id.
95
Id.
96
FTC Policy Statement on Unfairness, FTC (Dec. 17, 1980), available at https://www.ftc.gov/publicstatements/1980/12/ftc-policy-statement-unfairness (last visited May 22, 2020); see also In re International
Harvester, 104 F.T.C. 949, 1984 WL565290 at *95, *98-99; LabMD, 894 F.3d at 1228-1229; Beales, The FTC’s
Use Of Unfairness Authority: Its Rise, Fall, and Resurrection.
97
FTC Policy Statement on Unfairness.

23

 consumers or competition that the practice produces; and (3) it must be an injury that consumers
themselves could not reasonably have avoided.”98
As for the second Sperry/Christie factor—violation of public policy—the FTC makes
clear that the policy relied upon “should be clear and well-established”—that is, “declared or
embodied in formal sources such as statutes, judicial decisions, or the Constitution as interpreted
by the courts” and not “ascertained from the general sense of the national values.”99
Importantly, the FTC “nix[ed] the third Sperry/Christie factor—whether a practice is
immoral, unethical, or unscrupulous—because it was ‘largely duplicative’ of the first two.”100
When Congress re-authorized the FTC in 1994, it codified the Unfairness Policy
Statement’s unfairness test into Section 5(a) of the FTC Act.101 Thus, in accordance with both
the FTC’s policy statement and FTC Act, the test for determining whether conduct is unfair
pursuant to the FTC Act is no longer the three factor Sperry/Christie test, but instead can be
summarized as follows. Conduct is unfair if it: (1) causes injury to consumers that (a) is
substantial; (b) is not outweighed by any countervailing benefits to consumers or competition
and (c) that consumers cannot reasonably avoid and (2) violates public policy that is clear and
well-established,—i.e., set forth in statutes, judicial decisions, or the Constitution as interpreted
by the courts. Conduct is not unfair under the FTC Act simply because the FTC believes that
such conduct is immoral, unethical, or unscrupulous.
Since 1979, the Vermont Supreme Court has cited to the Sperry/Christie unfairness test
but has yet to address either the changes to the fairness test under federal law or the ramifications

98

Id
Id
100
LabMD, 894 F.3d at 1229 (citing FTC Policy Statement on Unfairness).
101
15 U.S.C.§ 45(n).
99

24

 of those changes on the construction of the term “unfair” in the VCPA.102 Nevertheless, 9 V.S.A.
§ 2453(b) is clear: when interpreting the VCPA’s terms, Vermont courts must be guided by the
FTC and federal law. Accordingly, this Court must apply the current FTC unfairness test to
determine whether the State has failed to state an unfairness claim pursuant to the VCPA.
C.

The State’s Outdated Immorality Accusations Are Bad Law

The State appears to acknowledge, at least obliquely, that the immorality factor has been
eliminated from the FTC Act’s unfairness test.103 Nevertheless, the State urges the Court to
employ the outdated and superseded Sperry/Christie test for unfairness by relying, at least in
part, on its allegations that Clearview’s conduct is immoral. According to the State, “at a
minimum, Clearview’s practices violate public policy and are immoral and unscrupulous” which,
“is sufficient for the pleading stage.”104 The State’s approach is wrong and must be rejected.
First, the principal question regarding the Sperry/Christie unfairness test is not, as the
State suggests, whether the three-factor test should be construed in the conjunctive or
disjunctive. The State cites cases from several jurisdictions in which courts have concluded that
the Sperry factors are to be construed conjunctively.105 This tells only half the story, however. A
number of States have taken a different approach and have hewn more closely to current federal
law.106 Moreover, in California, a jurisdiction upon which the State relies, “[s]ome California

102
See, e.g., Lalande Air & Water Corp. v. Pratt (mem.), 173 Vt. 602, 603, 795 A.2d 1233, 1235 (2002);
see also State v. Big Brother Sec. Prog. and Palmer, No. 326-4-20 Cncv, Dec. on Prelim. Inj. at 9-10 (Apr. 27,
2020) (Pls. Reply Br., Ex. A); State of Vermont v. CSA-Credit Solutions of Am., LLC & Doug Van Arsdale, Dec. and
Order: Mot. for Summ. J. at 7 (Vt. Super. Ct. March 5, 2012) (Pls. Mot. For Prelim. Injunct., Ex. A) (citing the
Unfairness Statement and observing that consumer injury is the most important factor in the unfairness test).
103
Pl. Opp. at 57 (citing LabMD, 894 F.3d at 1229 for the proposition that the FTC has “nix[ed]” the third
factor—immorality—of the Sperry/Christie unfairness test”).
104
Pl. Opp. at 59.
105
Pl. Opp. at 57-58.
106
See, e.g., Sager v. Hous. Comm'n of Anne Arundel Cty., 957 F. Supp. 2d 627, 642 (D. Md. 2013) (“[T]o
be considered unfair under the MCPA, a trade practice must result in a: (1) substantial injury; (2) that is not
outweighed by any countervailing benefits to the consumer or to competition that the practice produces; and (3) it
must not be the type of injury that a consumer could reasonably have avoided.” (internal citation omitted)); State v.

25

 courts follow Sperry,” but “others follow a ‘tethering’ test that requires the public policy at issue
to ‘be tethered to specific constitutional, statutory, or regulatory provisions.’”107 As set forth
above, consistent with the requirements of the VCPA, this Court should conclude that the
Sperry/Christie has been superseded by an unfairness test that prioritizes the consumer injury
factor, requires that the public policy be clearly established, and eliminates the immorality
factor.108
Second, the State’s insistence that this Court employ an outdated test in deciding this
motion to dismiss is more than a matter of legal semantics. Instead, it highlights the fundamental
and fatal flaw at the heart of the State’s Complaint. In significant part, the thrust of Complaint is
that Clearview has violated the VCPA because it has engaged in alleged conduct that the
Attorney General’s Office believes is immoral and unscrupulous. Specifically, that Clearview
has intruded on Vermonters’ privacy. Declaring conduct immoral and seeking to ban it is, of
course, precisely the approach taken by the FTC in the late 1970s with respect to advertising
aimed at children. Then, the public and Congress would not tolerate the FTC creating public
policy out of whole cloth and serving as the morality police. The FTC was therefore forced to

Weinschenk, 2005 ME 28, ¶ 16, 868 A.2d 200, 206 (same); Morrison v. Allen, 338 S.W.3d 417, 439 (Tenn. 2011)
(same); In re Mississippi Medicaid Pharm. Average Wholesale Price Litig., 190 So. 3d 829, 841 (Miss. 2015)
(same); Porsche Cars N. Am., Inc. v. Diamond, 140 So. 3d 1090, 1096 (Fla. Dist. Ct. App. 2014) (“We must decide
whether Florida law adopts the definition of unfairness contained in the 1980 Policy Statement. We hold that it
does.”); see also Iowa Code § 714.16(1)(n) (2006) (“ ‘Unfair practice’ means an act or practice which causes
substantial, unavoidable injury to consumers that is not outweighed by any consumer or competitive benefits which
the practice produces.”).
107
Colgate v. JUUL Labs, Inc., 402 F. Supp. 3d 728, 758–59 (N.D. Cal. 2019) (summarizing case law).
108
In Palmer, this Court observed that, in issuing the Unfairness Policy Statement, the FTC made express
its position that the Sperry factors should be considered in the conjunctive. Palmer, No. 326-4-20 Cncv, at 9. Yet the
Court appeared to be focused on the consumer injury and public policy factors and ultimately concluded that price
gouging violated public policy. Thus, the Court did not need to determine whether the immorality factor had been
eliminated as an independent prong from the FTC’s unfairness test. Vermont v. Big Brother Security Programs and
Palmer, Civil Div. No. 326-4-20 (Vt. Super. Ct., Chittenden Unit, April 27, 2020) (Toor, J.).

26

 amend the Sperry/Christie test for unfairness. History repeats itself here as the State commits the
same mistake and relies on the old, superseded unfairness standard to do so.
Finally, because immorality is no longer a factor in determining whether conduct is unfair
pursuant to the VCPA, to the extent that the Complaint alleges that Clearview’s behavior is
immoral and unscrupulous, those allegations simply fail to state a claim under 9 V.S.A. §
2453(a).
D.

The State Fails to Show a Violation of Well-Established Public Policy

In addition to its accusations of immorality, the State also avers that Clearview’s alleged
conduct is unfair because that conduct violates public policy. Here too, the State has failed to
advance a legally cognizable claim.
Although public policy evidence may be considered when assessing whether a practice is
unfair, “it may not serve as a primary basis for such determination.” 109 Moreover, the public
policy at issue must be clear and well-established,—i.e., set forth in statutes, judicial decisions,
or the Constitution as interpreted by the courts.110 At the motion to dismiss stage, this Court is
not required to accept as true either the State’s “conclusory allegations” or its “legal conclusions
masquerading as factual conclusions.”111
Even a cursory examination of the Complaint reveals that the State’s public policy
allegations are quintessential conclusory allegations. At the heart of the State’s unfairness claim
is the allegation that Clearview has “invade[d] the privacy of consumers.” Apparently, this
alleged invasion of privacy “violate[s] consumers’ rights in their photographs,” exposes them to

109

15 U.S.C. § 45(n).
FTC Policy Statement on Unfairness.
111
Colby v. Umbrella, Inc., 2008 VT 20, ¶ 10, 184 Vt. 1, 9–10, 955 A.2d 1082, 1089 (2008) (quoting Smith
v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.2002)) (emphasis added).
110

27

 the “threat of surveillance, stalking, harassment, and fraud,” and even “chill[s] [their] freedom of
assembly and political expression.” 112 Simply put, these are not factual allegations about
Clearview’s behavior. They are, at best, legal conclusions masquerading as facts.
Furthermore, the State fails to allege a public policy in Vermont, let alone a clearly
established public policy, that prohibits Clearview’s alleged conduct. The Complaint does not
cite to a statute or a judicial decision interpreting either the Vermont or United States
Constitution that prohibits Clearview’s conduct. There are no such authorities. In their glaring
absence, the State relies on general constitutional principles concerning privacy—one of the
most confused and controversial areas of constitutional jurisprudence—and seeks to apply those
general principles to facial recognition technology, a rapidly developing area of technology
about which public opinion is far from clear. With no input from the community or the Vermont
legislature, the State has “ascertained” its public policy opinion “from the general sense of the
national values.”113 The FTC’s unfairness test does not permit such an approach and it is
therefore insufficient to advance a claim pursuant to the VCPA.
The State relies heavily on this Court’s decision in Palmer to bolster its public policy
theory. This reliance is misplaced. If anything, comparing the State’s claims in the instant case
with those the State advanced in Palmer demonstrates how far afield the State has gone. In
Palmer, the Court concluded the price gouging—specifically the price gouging of personal
protective equipment (PPE) during the Covid-19 pandemic—violated public policy under the
VCPA. In doing so, the Court reviewed a number of sources for an anti-price gouging public
policy, including: Governor Scott’s Covid-19 emergency declaration; Vermont’s fuel price

112
113

Compl. at ¶ 78(c), (f)-(h).
FTC Policy Statement on Unfairness.

28

 gouging law; other states’ price gouging laws; and federal law prohibiting the price gouging of
critical material, including PPE. The Court even noted the definition of price gouging in Black’s
Law Dictionary.114 That society does not accept price gouging in a crisis market is an old norm.
At issue in Palmer were specific harms to people that focused the analysis and provided
standing. Those harms included the potential death of medical professionals on the front lines of
a pandemic due to lack of protective gear the defendant was marking up and lying about to
everyone, including this Court.
Against this backdrop, which easily establishes a clear public policy against price
gouging necessary equipment during an emergency, the Court rightly rejected the defendant’s
specious claim that price gouging PPE did not violate public policy because the Vermont
legislature has not passed a law specifically prohibiting the gouging of PPE prices.
The conduct at issue in this case, however, is not the price gouging of necessary
equipment during an emergency. As discussed, Clearview indexes public photos from the
internet and then employs its facial biometric algorithm to search those cached public photos.
The State does not, and cannot, point to an emergency declaration, statute, dictionary entry, or
any source, that either prohibits this conduct or suggest that there is a clear public policy against
such conduct. Accordingly, the State has failed to state a claim for unfairness pursuant to the
VCPA’s public policy factor.
E.

The State Fails to State a Claim That Clearview’s Alleged Conduct Causes
Substantial Injury to Consumers

Consumer injury is the principal factor in the VCPA’s unfairness test. Nevertheless, for
purposes of this motion to dismiss, the State appears to disavow reliance on the consumer injury

114

Palmer, No. 326-4-20 Cncv, at 10-11.

29

 factor. Specifically, the State asserts that its claims are “not limited only to the FTC’s substantial
consumer injury test” and that the State “may”—and presumably may not— “also seek to prove
substantial consumer injury at trial.”115 In light of the State’s disavowal of the consumer injury
factor, the Court need not assess the factor to decide the motion to dismiss. But if even if the
Court were to do so, the State has failed to plead adequately a claim that Clearview has injured
consumers in a manner that (a) is substantial; (b) is not outweighed by any countervailing
benefits to consumers or competition; and (c) that consumers cannot reasonably avoid.
No construction of the facts alleged by the State amount to a “substantial” consumer
injury for purposes of the VCPA. To be substantial, an injury must not be “merely speculative”
and in most cases “involves monetary harm.”116 “Emotional impact and other more subjective
types of harm . . . will not ordinarily make a practice unfair.”117 The State fails to allege that any
Vermonters have suffered economic harm and instead essentially speculates that the public will
suffer vague emotional harm arising from privacy infringement. This is not a sufficient VCPA
claim.
Nor does the State allege any facts pertinent to the balance between the purported harms
and the clear community benefits of Clearview’s product with respect to law enforcement and
public safety. Indeed, Clearview’s search engine has been described in the New York Times as ”
‘the biggest breakthrough in the last decade’ in the field of child sexual abuse crimes”—it is
difficult to imagine a more weighty public benefit against which the State’s totally inchoate and

115

Pl. Opp. at 57, 59.
FTC Policy Statement on Unfairness.
117
Id.
116

30

 hypothetical “harms” to consumers must be balanced.118 The State’s silence on this issue speaks
volumes about both the insufficiency of its pleading and the State’s ill-advised attempt to use the
VCPA to circumvent an important public policy debate during which the community, and
perhaps the Vermont Legislature, could balance the benefits of Clearview’s product against any
potential concerns.
Finally, the State alleges that consumers cannot reasonably avoid having their public
photographs used in Clearview’s indexing process. Although Clearview strongly disputes this
conclusory allegation because its indexing activities respect social media privacy settings and
robots.txt, Clearview recognizes that a motion to dismiss is not the correct venue for such a
dispute. Because the State has failed to allege facts that, even if true, amount to a substantial
consumer injury that is not outweighed by countervailing benefits to consumers, this Court can,
and should, dismiss the Complaint without addressing the avoidance allegation.
In sum, the State asserts that “Clearview’s practices violate public policy and are immoral
and unscrupulous” which, “is sufficient for the pleading stage” of its VCPA unfairness claim.119
The State has disavowed its reliance on the consumer injury factor for purposes of this motion to
dismiss and left ambiguous whether it will advance a consumer injury claim at trial.120 Because
immorality is no longer a factor in the VCPA’s unfairness test, to the extent the State relies on
allegations that Clearview’s conduct is immoral, the unfairness claim must be dismissed.
Because the State has failed to alleged facts which, even if true, establish that Clearview’s

118
Kashmir Hill and 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-recognitionchild-sexual-abuse.html, as amended (Feb. 10, 2020).
119
Pl. Opp. at 59.
120
Id.

31

 conduct violates clearly established public policy, to the extent the State relies on public policy
allegations, its claim must be dismissed.
F.

The Alleged Deceptions Are Immaterial Puffery

The State also claims that Clearview has violated the VCPA by engaging in “deceptive”
acts.121 This claim should also be dismissed pursuant to Rule 12(b)(6).
For an act to be deceptive under the VCPA: (1) there must be a representation, omission,
or practice likely to mislead consumers; (2) the consumer must be interpreting the message
reasonably under the circumstances; and (3) the misleading effects must be material, that is,
likely to affect the consumer’s conduct or decision regarding the product.122 As set forth in
Clearview’s initial Memorandum, the Vermont public, whom the State alleges are deceived by
Clearview, are not the consumers of Clearview’s product.123 The potential consumers of
Clearview’s service are law enforcement agencies, who purchase the product for use in
conducting law enforcement and related activities. Yet the vast majority of Clearview’s allegedly
deceptive statements are not likely to mislead law enforcement and could not reasonably be
expected to affect law enforcement’s conduct with respect to Clearview.
The Complaint pleads the following allegedly deceptive statements about:
(a)
(b)
(c)
(d)
(e)
(f)

the ways that Vermont consumers can assert their privacy rights to opt out
of the product;
that Clearview's processing of consumers' personal data does not unduly
affect their interests or fundamental rights and freedoms;
the strength of its data security;
that the product is only used by law enforcement agencies and is not
publicly available;
that it removes consumers from its database to comply with relevant laws;
the accuracy of its facial recognition matching product; and

121

Compl. at ¶¶ 79-81.
See, e.g., Carter v. Gugliuzzi, 168 Vt. 48, 56 (1998).
123
Opp. to PI. at 64.
122

32

 (g)

its success in assisting law enforcement investigations.124

Only the last two of these statements relate to Clearview’s performance in the hands of its
law enforcement consumers. Yet the State has alleged no facts about how these purportedly
deceptive statements are likely to influence law enforcement’s decision to purchase Clearview’s
product. The State has certainly not alleged that any law enforcement agency has found
Clearview’s product wanting. To the contrary, the real thrust of the State’s lawsuit appears to be
the Vermont public will be harmed by law enforcement using Clearview’s product to intrude
upon the public’s privacy. For this reason alone, the Complaint fails to state a VCPA claim and
should be dismissed.
In any event, the allegation in subsection (f) is immaterial because consumers are given
free trials of Clearview’s product and could judge the product for themselves before committing
to a subscription, as noted in the news reports cited by the Complaint. Similarly, the allegation in
subsection (g) is not material and misleading because past results do not guarantee future results
and the alleged misstatements are puffery. Clearview is entitled to assert opinions regarding the
quality and value of its product. The fact that the State disagrees with those opinions does not
render Clearview’s statements actionable under the VCPA.125 Again, if law enforcement
customers did not find Clearview AI effective then they were not required to subscribe after their
free trial. The State also contradicts itself by simultaneously arguing that Clearview's accuracy
will lead to an Orwellian dystopia while at the same time arguing it isn't accurate.

124

Compl. at ¶ 81(a)-(g).
See, e.g., Repucci v. Lake Champagne Campground, Inc., 251 F. Supp. 2d 1235, 1241 (D. Vt. 2002)
(dismissing VCPA claim alleging misrepresentation about the quality of a campground because the representation
was one of opinion, not fact).
125

33

 Moreover, the alleged misrepresentation in subsection (a) is a legal conclusion
masquerading as a representative statement because it assumes there is a legal privacy interest
that can be asserted. So too with subsection (b), which is rife with vague language referencing
fundamental rights and freedoms. The allegation in subsection (c) is a matter of subjective
opinion and Vermont offers no objective metric by which to measure “strength.” The allegation
in subsection (d) is not material because it assumes Clearview has a legal obligation to only sell
to law enforcement and that doing otherwise impacts inchoate legal interests. Finally, the
allegation in subsection (e) is not even arguably material to anyone except to an individual who
has a legal right to be removed from Clearview’s database, none of whom are identified in the
Complaint. In sum, none of these allegations advance a valid deception claim pursuant to the
VCPA.
V.

Vermont Violates Due Process with Its Arbitrary Application of the VCPA
The State’s prosecution of this case also violates due process because the law on which

the cause of action is based is unconstitutionally vague.
“Laws and regulations are unconstitutionally vague when they either fail to provide
sufficient notice for ordinary people to understand what conduct is prohibited, or allow arbitrary
and discriminatory enforcement.”126 “Due process also requires that [the government
enforcement agency] not subject licensees to arbitrary and discriminatory enforcement. Thus, in
addition to offering a person of ordinary intelligence a reasonable opportunity to know what is
prohibited, regulations must also provide explicit standards for the law enforcement officers who
apply them.127

126

In re Beliveau NOV, 194 Vt. 1 (2013); see also In re Rusty Nail Acquisition, Inc., 2009 VT 68, ¶ 12, 186
Vt. 195, 980 A.2d 758.
127
Sec'y, Vt. Agency of Natural Res. v. Irish, 169 Vt. 407, 411, 738 A.2d 571, 575–76 (1999).

34

 In this case, the State’s effort to enjoin Clearview’s conduct as “deceptive” and “unfair”
acts pursuant to the VCPA violates due process. Again, this Court’s decision Palmer is
instructive. In rejecting the defendant’s argument that the VCPA was unconstitutionally vague,
the Court observed that his conduct—which, again, involved lies about, and price gouging of,
PPE during the most deadly global pandemic in at least a century—was “outrageous,” “plainly
unconscionable,” and “plainly dishonest.”128 Accordingly, the Court determined defendant’s
claim that the VCPA “language here is too vague for him to have known what was proscribed
falls flat.”129
This case stands in sharp contrast. There can be no plausible argument that Clearview
could have possibly been on notice that its product, which law enforcement agencies use to
protect the community, was somehow “unfair” or “deceptive” under the VCPA. Due process
does not permit the State’s arbitrary application of the VCPA to Clearview’s lawful product.
A.

The State Alleges Conclusory Facts That Can Be Contradicted by Judicial
Notice

“On a motion to dismiss, the court must assume that the facts pleaded in the complaint
are true and make all reasonable inferences in the plaintiff’s favor.”130 Because the purpose of a
dismissal motion “is to test the law of the claim, not the facts which support it,” ordinarily such a
motion will be granted when “it is beyond doubt that there exist no facts or circumstances that
would entitle [the plaintiff] to relief.”131 Nonetheless, “where the plaintiff does not allege a
legally cognizable claim, dismissal is appropriate.”132

128

Palmer, No. 326-4-20 Cncv, at 14.
Id.
130
Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, ¶ 10, 208 A.3d 609.
131
Powers v. Office of Child Support, 173 Vt. 390, 395, 795 A.2d 1259, 1263 (2002); Vt. R. Civ. P. 8(a).
132
Montague, 2019 VT 16, ¶ 11; see also Colby v. Umbrella, Inc., 2008 VT 20, ¶ 13, 184 Vt. 1, 955 A.2d
1082 (holding “our rules of civil procedure . . . strike a fair balance, at the early stages of litigation, between
129

35

 In assessing the sufficiency of the complaint, the Court is not required to consider
“conclusory allegations or legal conclusions masquerading as factual conclusions.”133 In Aranoff,
the Vermont Supreme Court delineated the distinction between assertions of fact and legal
conclusions masquerading as factual conclusions in a manner with direct application to this case:
The statement in the petition that “[t]he named defendants are the current District
and Superior Court judges, all of whom have the authority to discipline and or
terminate the employment of Petitioner” is not entirely a statement of fact.
Unquestionably, the named defendants are all members of the Vermont trial court
bench. However, the assertion that any of them has the authority to discipline or
terminate petitioner’s employment is a description of the legal power of the several
named defendants and hence is a question of law, not fact.134
Here, the State’s Complaint is rife with legal conclusions that are unsupported by any
well-pleaded factual allegations.135 For example, while the State quotes Clearview’s Privacy
Policy to provide that it is “not allowed to process personal data if [it] does not have a valid legal
ground” and therefore “will only process personal data if . . . the processing is necessary for the
legitimate interests of Clearview, and does not unduly affect your interests or fundamental rights
and freedoms,”136 it provides only a threadbare response: “This is untrue. Clearview’s
processing does very much unduly affect consumers’ interests and fundamental rights and
freedoms.”137 This allegation does no more than express the State’s disagreement with
Clearview’s Privacy Policy.

encouraging valid, but as yet underdeveloped, causes of action and discouraging baseless or legally insufficient
ones”).
133
Id., 2008 VT 20, ¶ 10 (quoting Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.
2002)); see also Aranoff v. Bryan, 153 Vt. 59, 62–63, 569 A.2d 466, 468 (1989).
134
Aranoff, 153 Vt. 5 at 62–63.
135
The Complaint in this action includes numerous paragraphs making conclusory allegations, or
allegations asserting legal conclusions that are masquerading as facts. See Colby v. Umbrella Co., and Aranoff,
supra. The following Complaint paragraphs should not be treated as true by the Court for the purposes of deciding
Clearview’s Motion to Dismiss: 8-10, 14, 20, 23, 34, 37-42, 44-46, 51-55, 57-58, 60, 62-63, 67-68, as well as all of
the pleading counts which incorporate by reference the foregoing Complaint paragraphs.
136
Compl. at ¶ 59.
137
Id. at ¶ 60.

36

 The State then goes on to assert another legal conclusion masquerading as a factual
allegation by claiming that the Privacy Policy “would lead a reasonable consumer who is not
technologically sophisticated to believe that the personal data Clearview stores is completely
secure, despite the impossibility of such a claim.”138 This allegation first assumes that the
accuracy of the Privacy Policy is assessed from the perspective of a “reasonable consumer who
is not technologically sophisticated”—which is a legal issue solely within the province of the
Court. Moreover, the Privacy Policy, as quoted in the Complaint, speaks for itself. The Court
need not accept as true the State’s subjective characterization of the Privacy Policy, particularly
where it provides no facts to warrant the conclusion that the Privacy Policy promises a degree of
data security that it “impossible” to satisfy or is otherwise false or misleading. So, too, the
State’s allegation that Clearview has “failed to provide a level of data security proportional to the
sensitivity of the data that Clearview is collecting,”139 reflects the State’s legal conclusion about
the degree of security that the law requires.
Perhaps the most flagrant example of the State’s conclusory and unsupported allegations
that turns the burden of proof in this, and every other, civil action on its head: “To date,
Clearview has not demonstrated to the Attorney General’s Office or otherwise that it has
implemented reasonable data security measures.”140 At the pleadings stage, it is the State, as
plaintiff, that bears the burden to satisfy Rule 8 and to properly support its causes of action
against Clearview. As defendant, Clearview has no burden of “demonstrating” anything to the
Attorney General’s Office in order to prevail on a motion to dismiss. This legally vacuous
allegation adds nothing to the Complaint and incorrectly implies that the Attorney General’s

138

Id. at ¶ 62.
Id. at ¶ 68.
140
Id. at ¶ 63.
139

37

 subjective assessment of the reasonableness of Clearview’s data security measures carries any
weight at the pleadings stage.
In addition to pleading the foregoing bare legal conclusions set forth in the Complaint,
the State improperly seeks to fill in the factual lacunae by citing news reports, the accuracy of
which it does not verify and whose assertions the State does not even endorse.141 For example,
the State disputes a purported representation on Clearview’s website that its app is not available
to the public by asserting that “[a]ccording to news reports, this is untrue” and that “Clearview
has reportedly made the app available to investors for use in public spaces.”142 It goes on to
allege that Clearview “has also allegedly provided access to governments or businesses in up to
27 countries.”143 Having done little, if any, investigation or fact-gathering of its own beyond
simply reading BuzzFeed and the New York Times, the State is left to paraphrase reporting that
journalists have published.144 In outsourcing its investigation to the media and using the media’s
reporting as the primary source of factual allegations in the Complaint, the State fails to make
clear what it “directly allege[s] as fact, and what [it] merely [is] asserting that someone else has
said.”145
The Court is not obliged to accept the State’s litigation-driven summary of news reports
at face value to fill in the gaps in its Complaint. “Newspaper articles should be credited only to
the extent that other factual allegations would be—if they are sufficiently particular and detailed

141

The Complaint in this action includes numerous paragraphs which appear to be drawn from newspaper
articles and other news reports without independent investigation as required by Rule 11. Accordingly, these
allegations are not well pled, and the Court should not consider the following paragraphs as true for purposes of
deciding Clearview’s motion to dismiss:16-22, 23, 25, 27-29, 31-33, 35-36, 43, 52, 70-72, 74-75 as well as all of the
pleading counts which incorporate by reference the foregoing Complaint paragraphs.
142
Compl. at ¶¶ 30-31 (emphasis added).
143
Id. at ¶ 31 (emphasis added).
144
Id. at ¶ 35 (stating that “NYT reporter Kashmir Hill reported . . .” and “Hill concluded that this as
because Clearview knew of the NYT investigation”).
145
Geinko v. Padda, No. 00 C 5070, 2002 WL 276236, at *6 (N.D. Ill. Feb. 27, 2002).

38

 to indicate their reliability. Conclusory allegations of wrongdoing are no more sufficient if they
come from a newspaper article than from plaintiff’s counsel.”146
The State, no less than any other plaintiff in a civil action, and perhaps more so given its
substantial investigatory and litigative resources, is required to present its pleadings “after an
inquiry reasonable under the circumstances.”147 The State cannot satisfy its pleading burden by
“fill[ing] gaps in its factual allegations by reference to unnamed or anonymous sources in a
newspaper article. To conclude otherwise, would allow parties to circumvent Rule 11 . . . and
would serve to reduce that duty to the mere purchase of a newspaper.”148
The Court need not accept these news reports cited by the State as true for the additional
reason that they are neither attached to the Complaint nor incorporated therein by reference.149 It
is true that “[e]ven where a document is not incorporated by reference, the court may
nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,’ which
renders the document ‘integral’ to the complaint.”150 However, the news reports cited in the
Complaint are not “integral” to the Complaint because they do not give rise to the State’s causes

146

In re Optionable Sec. Litig., 577 F. Supp. 2d 681, 690 (S.D.N.Y. 2008) (internal punctuation omitted);
see also Hershfang v. Citicorp, 767 F. Supp. 1251, 1255 (S.D.N.Y. 1991) (“The complaint must rise or fall on
allegations about defendants’ conduct and not on wide-eyed citation to the gratuitous commentary of outsiders.”).
147
V.R.C.P. 11(b).
148
Walker v. S.W.I.F.T. SCRL, 517 F. Supp. 2d 801, 807 (E.D. Va. 2007). See also id. (stating that proper
reliance on a newspaper article could include an article “reporting uncontroversial facts such as the public
occurrence of an event, or the closing price of a corporation’s stock, or weather conditions” but that the New York
Times article at issue fell short of this standard); Greenfield v. U.S. Healthcare, Inc., 146 F.R.D. 118, 127 (E.D. Pa.
1993) (“Although information transmitted by the media may have some inherent truthfulness, and publications such
as the Wall Street Journal are well-respected for their accuracy, Rule 11 conveys a non-delegable duty upon the
signing attorney to conduct his own independent analysis of the facts and law which form the basis of a pleading or
motion.”), aff’d sub nom. Garr v. U.S. Healthcare, Inc., 22 F.3d 1274 (3d Cir. 1994).
149
Cf. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (on 12(b)(6) “a district court
may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.”).
150
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).

39

 of action, nor do they constitute a written instrument whose “terms are effect” are at issue.151 The
articles are not “central” or “integral” to the State’s case “in the legally relevant manner because
[their] existence did not create the legal rights asserted. At most, it provided plaintiffs with some
notice of a possible right of action.”152
The State seems particularly impressed by the fact that Clearview has copied roughly
three billion photos and stored them on servers, as if this was a particularly impressive feat by
today's search engine and data storage standards. It is not. Many companies routinely storing
billions of photos and documents on their servers. Major news and photo agencies like Getty
Images, Reuters, and the Associated Press are just three examples. Regardless, nothing in
Brandeis, Warren, Prosser, or any citation presented by the State, suggests volume is an element
of whatever the inchoate legal interest the State is confusedly arguing for.
The State’s incredulous acceptance of hearsay facts that are readily deflated by facts this
Court can take judicial notice shows their lack of due diligence before launching this costly,
burdensome, and animus laden prosecution. The State spins a narrative based on hearsay facts in
news reports that no one seems to have bothered to fact check. For instance, the State repeatedly
uncritically cites Google for the proposition that in 2011 a Google CEO commented that Google
had considered Facial Recognition software but didn't want to go down that path because
somehow that would be evil.153 The presumption being that Clearview is violating established
norms that even Big Tech won't engage in. Google is presented as virtuous because of a 2011
quote printed in the New York Times from a Google executive implying that facial recognition is

151

Accord V.R.C.P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part
thereof for all purposes.”).
152
Walker, 517 F. Supp. 2d at 806.
153
Compl. at ¶ 17; Pl. Opp. at 64.

40

 immoral and something Google chose not to engage in. Vermont uncritically offers Google as a
paragon of virtue. But Google's acts speak louder than its New York Times sound bite.
B.

Google has Patented Multiple Facial Recognition Algorithms Since 2011

No mention is made of the fact that since 2011, Google has patented 24 number of facial
recognition patents, including one “Method and apparatus to incorporate automatic face
recognition in digital image collection,”154, or that during the same period it voted to downgrade
its corporate motto "Do No Evil," relegating it to the back of its employee manual. Or that it
actively uses facial recognition software as part of Google image search, just like its brethren Big
Tech advertising companies. Or that it is seeking business in China (like its brethren as well) and
has expressed a willingness to censor its search engine in that country. Or that its former CEO
Eric Schmidt has identified working with the Pentagon on AI as his priority.155 We leave it to the
State to lecture on the morality of these acts, Clearview takes no position except to note that the
narrative spun by the State’s conclusory and uncritically accepted facts is dispelled by facts this
Court can take judicial notice of.
VI.

The State’s Privacy Theory is Bad Law
During the past 130 years Vermont has chosen not to enact a right to privacy. Its

legislature and courts have shown little concern for privacy, even while neighboring New
Hampshire adopted a constitutional Right to Privacy in 2018.156 Yet, it now wishes to attack
Clearview on the basis of privacy “norms” that are unarticulated in the State’s Complaint. To the

154

Patent Registration No. 8,897,508.
Kate Conger and Cade Metz, "I Could Solve Most of Your Problems': Eric Schmidt’s Pentagon
Offensive," N.Y. Times, May 2, 2020, available at https://www.nytimes.com/2020/05/02/technology/eric-schmidtpentagon-google.html.
156
See “State Constitution – Bill of Rights”, at https://www.nh.gov/glance/bill-of-rights.htm, (last accessed
May 21, 2020) (stating that Right to Privacy was adopted December 5, 2018).
155

41

 extent that any of the State’s causes of action are based on violations to Vermonters’ right to
privacy, those claims must be dismissed.
The State’s lengthy discussion about Vermonters’ reasonable expectation of privacy is
extraneous, conclusory, and disproportionate to the short shrift privacy gets in the Complaint.
This reasonable expectation of privacy argument in the State’s opposition papers is entirely
divorced from anything found in the Complaint. The Complaint has no cause of action alleging a
breach of Vermonters’ reasonable expectation of privacy, standards for what that reasonable
expectation of privacy is, nor specific facts showing a breach of a reasonable expectation of
privacy. What the Complaint does contain is a conclusory allegation in Count One that
Clearview commits unfair acts in violation of Vermont Consumer Protection Act by “invading
the privacy of consumers.”
“Invading the privacy of consumers” is a legal conclusion and the State shows no link
between “invading the privacy of consumers” and the concepts painstakingly argued in the
Opposition – that Vermonters are afforded a “reasonable expectation of privacy” which
Clearview breached.157 While allegations and arguments about an alleged breach to Vermonters’
reasonable expectation of privacy were contained in the State’s motion for a preliminary
injunction, the State’s allegations about this expectation of privacy are absent from its
Complaint. The State’s argument about the reasonable expectation of privacy standard is an
effort to divert and distract the court and appeal to the court’s emotions in the absence of
factually complete and coherent pleadings. An opposition brief should be used to argue that

157

See Colby v. Umbrella, Inc., 2008 VT 20, ¶ 10, 184 Vt. 1, 9, 955 A.2d 1082, 1089 (2008), noting that,
“courts [are] not required to accept as true ‘[c]onclusory allegations or legal conclusions masquerading as factual
conclusions’ in 12(b)(6) analysis.”

42

 pleading requirements are satisfied and not as a place to freestyle about nonexistent and
unpleaded torts (i.e. “technological intrusions of seclusion”).158
Bafflingly, the State argues that the existence of one case and one tort establish a “general
right to privacy,” which somehow unto themselves are grounds to proceed. (“Of course, Vermont
also recognizes both a general right to privacy in Denton159 and the tort of intrusion of seclusion
in Hodgdon.160 The State’s claims may proceed under that precedent.”).161 No matter that the
State never discusses Denton substantively and is not suing Clearview for the tort (intrusion upon
seclusion) which establish this so-called precedent. Incidentally, in Denton, the court granted
summary judgment to the defendant, finding the conduct was not highly offensive; and as
discussed at length in the motion to dismiss, intrusion upon seclusion in Vermont requires a
physical invasion which the complaint does not allege.162
The one place the State logically might look to guidance about Vermonters’ reasonable
expectation of privacy – a statute in which the term is used verbatim as an element and 2019
appellate case law interpreting it – is conveniently rejected. That State v. Van Buren163 is
criminal while the present case is civil is irrelevant because the case’s utility derives from the
court’s interpretation of the term – reasonable expectation of privacy – and not from the case as
a whole. The State offers a garbled argument about how Van Buren is distinguishable on the
basis that in that case the State needed to prove the victim’s privacy invasion under a “strict

158

See Pl. Opp. at 46.
Denton v Chittenden Bank, 163 Vt. 62, 655 A.2d 703 (1994).
160
Hodgdon v. Mount Mansfield Co., 160 Vt. 150 (1992).
161
See Pl. Opp. at 46.
162
See Denton, 163 Vt. at 69 (dismissing claim for intrusion upon seclusion when supervisor visited
employee at home and asked questions).
163
State v. Van Buren, 2018 VT 95, 214 A.3d 791 (2019).
159

43

 scrutiny” standard.164 The State is of course wrong because there is no distinction – strict
scrutiny is the appropriate standard of review when a government imposes content based
restrictions on speech, and narrow tailoring is an obligation on the entity seeking the
restriction.165 Moreover, strict scrutiny applies whether the law is civil or criminal.166
The State also claims VanBuren doesn’t apply because Clearview is not challenging the
constitutionality of the law (Clearview is asserting that its code is protected by the First
Amendment). VanBuren, though makes a factual holding – that Vermonters’ “reasonable
expectation of privacy” does not apply to the fate of images intercepted by third parties no matter
if the interception is illegal (e.g. through hacking) or the images are of a highly intimate nature
(i.e. nudity or sex).167 Van Buren also says the expectation of privacy, once the images have been
released, cannot be conjured retroactively from the depicted person clearly expressing nonconsent to sharing.168 It is not up to the third parties, no matter how they obtained the images, to
ascertain the depicted person’s feelings about privacy or consent.
The State next claims that Van Buren privacy standard doesn’t apply because its true
gripe with Clearview is not how it obtained the pictures or its possession of the dataset, but rather
its use of the images – applying AI and identifying people from those images. The State’s ability
to move the goalposts when confronted with resistance is another reminder of the absence of

164

Pl. Opp. at 40 (“However, the critical distinction is that the victim’s reasonable expectation of privacy
was an element of the crime and the State had a high burden to prove it under a strict scrutiny standard because the
statute itself was constitutionally challenged.”).
165
See Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015) (noting “content-based restrictions on speech ...
can stand only if they survive strict scrutiny, ‘which requires the Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest.’”); see also Williams-Yulee v. Fla. Bar, 575 U.S.
433, 444, 135 S. Ct. 1656, 1666, 191 L. Ed. 2d 570 (2015) (upholding state bar restrictions on judicial campaign
fundraising as narrowly tailored for compelling government interest).
166
Reed, 576 U.S. at 155 (applying strict scrutiny standard to governmental restrictions on size, location
and duration of temporary directional signs).
167
State v. VanBuren, 2018 VT at ¶ 97, as supplemented (June 7, 2019).
168
Id.

44

 facts undergirding the State’s privacy claim. Regardless, the State erroneously conflates the
person and the image. The manipulation or use of an image does not go to a person’s privacy
interest, but if anything, to a property interest. But again, the State has not – and factually cannot
– plead property claims.
The determination that data extraction from a raw image constitutes a privacy violation
would cause sweeping liability to the tech industry, academia, and potentially all levels of
government. For example, Cornell Tech enthuses that social media images are an “untapped data
source” and together with Google AI funds the research of Noah Snavely, in which he “develops
innovative technologies for unlocking this vast data source.”169 The “MegaFace Challenge” at
the University of Washington “aimed at evaluating and improving the performance of face
recognition algorithms at the million person scale.”170 One million Flickr images, representing
690,572 unique individuals, were publicly available to all entrants under a Creative Commons
license.171 This dataset is known as the MegaFace collection and has been used by more than 300
public and private research groups, including Clearview AI.172 The MegaFace challenge was
funded by the National Science Foundation, Intel, Samsung, Google, and the University of
Washington Animation Research Labs.173 The study’s lead author, UW Assistant Professor Ira
Kemelmacher-Shlizerman has sold start-ups relying on facial recognition to both Facebook and

169

See The Next Frontier: Data Mining Social Media Images (June 12, 2017),
https://tech.cornell.edu/news/the-next-frontier-data-mining-social-media-images/; See Noah Snavely,
http://www.cs.cornell.edu/~snavely/, (last accessed May 20, 2020).
170
See Jennifer Langston, How well do facial recognition algorithms cope with a million strangers? (June
23, 2016) https://www.washington.edu/news/2016/06/23/how-well-do-facial-recognition-algorithms-cope-with-amillion-strangers/.
171
Id.; See, About the License, https://creativecommons.org/licenses/, (last accessed May 21, 2020)
(explaining that a Creative Common License, “give everyone from individual creators to large companies and
institutions a simple, standardized way to grant copyright permissions to their creative work”).
172
Id.
173
Id.

45

 Google and presently leads the “moonshot project” at Google.174 And the winner of the
MegaFace Challenge? It was Google.
By the state’s logic, all 300 entities using the MegaFace dataset could have faced civil
liability for privacy violations even though the images were granted under a Creative Commons
license. After all, it is possible that the photographer who granted the Creative Commons license
did not have the consent to photograph an individual, but did so anyway. The state would treat
the data extraction of this nonconsenting subject’s face as a privacy violation.
The State’s notion of privacy vis-à-vis search engines is arbitrary nostalgia. It is no more
absurd that a picture of a face entered into a search engine could resolve to other pictures of a
face than it is for a name to be entered into a search engine that would resolve to pictures of faces
and links to personal data - as anyone can do The State has simply grown accustomed to one
type of public exposure and not the other. Thirty years ago, the State might have argued that the
personal information – address, photos, purchase price for a home, embarrassing articles, family
tree, romantic partner – supplied in Google searches has privacy consequences, but instead the
State says this is acceptable while the much more limited product from Clearview is a privacy
violation.
The State gets other things wrong. For instance, the State says even if photos were
considered public on the internet, a consumer would, at most, expect that photo to be viewed
online.175 Clearview is online. The images are viewed online. And again, Plaintiff is mistaken if
it thinks the analysis of images is unique to Clearview and not also performed by the
government, data brokers, Wall Street, and our country’s biggest tech companies like Apple and

174

See Ira Kemelmacher-Shlizerman, https://homes.cs.washington.edu/~kemelmi/, (last accessed May 20,

175

Pl. Opp. at 54.

2020).

46

 Facebook. Cases cited by the State, such as Opperman v. Path176 are inapposite because it
concerned a class action brought by consumers against a company, Apple, with whom they had a
contractual relationship.
VII.

The State's Complaint Violates the First Amendment
The State claims in its Opposition that “First Amendment Protections Do Not Apply

Here.”177 “But the First Amendment applies anytime the federal government or a state attempt
action restricting speech and expression. As Clearview argued in its Motion to Dismiss, the First
Amendment's protections cover a wide range of human communication, expression, and
representation: computer languages, science, mathematics, art, literature, public, private, and
political speech. All speech—with the exception of narrowly drawn exceptions – is subject to
protection from government censorship.
The State asserts that “[m]any of the harms that the State alleges do not arise from the
Clearview application itself but from Clearview’s unfair conduct, which involves no speech or
expression.”178 But this purported attempt to regulate “conduct” is a content and speaker-based
discrimination against the constitutionally protected speech of expressive search engines. The
First Amendment case law is clear; where the effect of commercial regulation is encroachment
upon protected speech, expression, or representation; the regulation is unconstitutional.
In Sorrell v. IMS Health, Inc., the United States Supreme Court rejected precisely this
type of unconstitutional regulation of protected speech by Vermont.179 In Sorrell, the State
similarly argued that conduct, not speech, was implicated by the State’s enforcement of a statute.

176

Opperman v. Path, 84 Fed. Supp. 3d 962 (N.D. Cal. 2015).
Pl. Opp. at 24.
178
Id.
179
Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011).
177

47

 The State argued that heightened First Amendment scrutiny was not required because the State’s
regulation was focused on “commercial regulation.”180
Citing the long line of cases addressing commercial regulation that inhibits speech, the
United States Supreme Court rejected the effort of the State to regulate commercial conduct
which had the effect of inhibiting speech on the basis of content and speaker. Sorrell rejects the
claim made here by the State, that “conduct” rather than speech was implicated. The Court
reasoned:
The State argues that heightened judicial scrutiny is unwarranted because its law is
a mere commercial regulation. It is true that restrictions on protected expression are
distinct from restrictions on economic activity, or, more generally, on nonexpressive conduct. It is also true that the First Amendment does not prevent
restrictions directed at commerce or conduct from imposing incidental burdens on
speech…. But [the statute here] imposes more than an incidental burden on
protected expression. Both on its face and in its practical operation, Vermont’s law
imposes a burden based on the content of speech and the identity of the
speaker….Vermont’s law does not simply have an effect on speech but is directed
at certain content and is aimed at particular speakers.181
In this case, the effort of the State to regulate what it denotes “Clearview’s unfair conduct
which involves no speech or expression” must fall to the holding in Sorrell.182 The State is
discriminating against one speaker: Clearview AI., and singling out its content: Clearview’s
search engines expressive speech. Under Sorrell, these are unconstitutional speaker and contentbased restrictions.
The State recycles another argument rejected in Sorrell: that regulating access to, and
use of, information is necessary to protect the privacy of Vermont’s citizens.183 The Court should
reject these attempts by the State to control access to, and use of, information on the open

180

Id. at 566.
Id. at 566-67.
182
Pl. Opp. at 24.
183
Id. at 25.
181

48

 internet disguised as commercial regulation of conduct, because under Sorrell, they are
unconstitutional content and speaker-based discrimination.
A.

The Speech at Issue is Not Commercial Speech.

The State additionally urges that the proposed speech of Clearview AI is commercial
speech, and therefore, may be regulated by an intermediate level of scrutiny.184 Specifically,
Vermont argues that “Clearview is a business operating out of a profit motive…,” and therefore
the speech of Clearview is commercial, subject to intermediate scrutiny as a result of the profit
motive of Clearview.185 By this rationale the First Amendment wouldn't apply to the New York
Times, which is a publicly traded, for profit, corporation.
If the profitability of an enterprise were the measure of its free speech protections, a State
could censor journalists, writers, artists, The New York Times, Google, Microsoft, and thousands
of data mining and computer companies that access, use, and publish information “out of a profit
motive.” The contrary is true. All of the above are speakers for First Amendment purposes, and
any regulation of their speech is subject to First Amendment protection.
Analyzing the Complaint through the lens of commercial speech standard is incorrect.
The State cites to the United States Supreme Court in 1980's Central Hudson Gas & Electric
Corp. v. Pub. Serv. Comm’n of New York186 for the proposition that “misleading statements made
by Clearview in its marketing materials and on its website . . . are commercial speech because
they constitute “expression related solely to the economic interests of the speaker and its

184

Id.
Pl. Opp. at 33.
186
Cent. Hudson Gas & Electric Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980).
185

49

 audience.”187 This characterization of “commercial speech” ignores Sorrell and First
Amendment law since 1980.
In its Complaint, the State dramatically touts the "Orwellian Dystopia" that Clearview
AI's App will lead to. But it would have us all believe that mainly what it is trying to do is
regulate marketing material sent to a state where Clearview has no customers. But everyone
knows from the tone of the Complaint that the State is targeting Clearview's facial biometric
public photo search engine and not its marketing campaign. The speech at issue is the expression
of Clearview’s computer languages and their algorithms. Commercial speech is only incidentally
involved in this matter is inextricably intertwined with the core of Clearview AI's expressive
speech. Thus, strict scrutiny applies.
Once again, the State recycles an argument it already lost in Sorrell v. IMS Health, Inc.188
There, Vermont alleged that its Prescription Confidentiality Law prohibited pharmacies and
similar entities from selling prescriber-identifying information of Vermont residents for
marketing purposes without the consent of the resident. Sorrell involved Vermont data miners
and an association of drug manufacturers sought a declaratory judgment and an injunction
against the State of Vermont on First Amendment grounds. The State argued that its statute was
a commercial regulation, requiring only intermediate scrutiny. The Supreme Court disagreed,
finding that the speech threatened was content and speaker-based regulation of speech, requiring
heightened scrutiny for First Amendment purposes.
The Court held that Vermont’s statute was a content-based and speaker-based limitation
of the First Amendment rights imposed on data miners, the association of brand-name

187

Pl. Opp. at 25 (citing Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S.
557, 561 (1980)).
188
Sorrell, 564 U.S. 552.

50

 pharmaceutical companies and pharmacies. The Court reasoned that the law barred marketing
information, imposing a restraint based on content, and a restraint based on particular speakers:
pharmaceutical manufacturers using the information for marketing messages.189
Sorrell rejects the claim made by the State here that intermediate scrutiny, rather than
strict scrutiny, applies. Sorrell holds that once a content or speaker-based restraint on speech is
implicated, all of the related speech is subject to strict scrutiny whether commercial or not:
[I]t is all but dispositive to conclude that a law is content-based and, in practice,
viewpoint discriminatory . . . . The State argues that a different analysis applies here
because, assuming Sec. 4631(d) burdens speech at all, it at most burdens only
commercial speech. As in previous cases, however, the outcome is the same
whether a special commercial speech inquiry or a stricter form of judicial scrutiny
is applied. . . . For the same reason there is no need to determine whether all speech
hampered by Sec. 4631 is commercial, as our cases have used that term..190
The content-based restrictions threatened by the State of Vermont in this case are
squarely within the holding in Sorrell. Vermont muses in its brief that in order to address the
imagined interest in anonymity of Vermont’s citizenry, it will be necessary to categorically
remove the content of Vermont’s citizens from the collection of public photos in Clearview’s
database. The State thus speculates in its argument for intermediate scrutiny of commercial
speech:
The State’s objective is to protect its citizens from being entered into a facial
recognition database that will destroy their privacy and anonymity, without their
affirmative consent. In satisfaction of the final prong of the commercial speech
test, the State has done its best to determine the least burdensome means of
accomplishing this goal.191
Removal of Vermont’s citizens will leave 99.8% or more of Clearview’s
database intact. The State is not aware of a less burdensome remedy that will
accomplish its goal.192

189

Id.
Id. at 566-67 (2011) (citing Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 474 (1989)
(discussing whether “pure speech and commercial speech” were inextricably intertwined, so that “the entirety must .
. . be classified as noncommercial”).
191
Pl. Opp. at p. 36.
190

51

 Vermont’s “solution” is unconstitutional. Assuming that the collection of publicly
available images of Vermont citizens appeared in a bound volume in a public library. By the
State's logic, if the Attorney General only censored a few books, and not all books, everything
would be fine.
Commercial speech analysis does not apply in this case. Even if it were to apply to some
of the speech Vermont seeks to censor, a heightened scrutiny test applies under Sorrell.
B.

The State is Engaging in Prohibited Speaker Discrimination

In 2010, that the Supreme Court clarified any ambiguity regarding speaker-based
discrimination as an independent factor triggering heightened scrutiny.193 In Citizens United v.
Federal Election Committee, the Supreme Court held that the First Amendment prohibited
discrimination based on the identity of the speaker: “Prohibited, too, are restrictions
distinguishing among different speakers, allowing speech by some but not others. . . . Quite apart
from the purpose or effect of regulating content, moreover, the Government may commit a
constitutional wrong when by law it identifies certain preferred speakers.”194
Under Citizens United, speaker-based discrimination triggers strict scrutiny. “The First
Amendment protects speech and speaker, and the ideas that flow from each.”195 Notably, the
speaker-focused regulation was “quite apart from the purpose or effect of regulating content . . .
.” This is an important development in First Amendment law. By emphasizing that speakerbased discrimination is separate and “apart from” the content of what it said, the Supreme Court
clarified that the First Amendment frowns upon speaker-based discrimination.

193

Citizens United v. Federal Election Committee, 558 U.S. 310 (2010).
Id. at 340.
195
Id. at 341.
194

52

 Here, the State is attempting to regulate a speaker it doesn't like, while allowing speakers
it does like to operate their search engines. The Court can take judicial notice of the fact that
simple internet searches for images using Google, Bing, Yahoo or any other search engine
publishes a trove of public photos of people. The very same public images the State complains
about Clearview's search engine accessing and using —including those on Facebook, Twitter and
Instagram – can be found in the search engine results of Google, Bing, Yahoo, and the like. You
can even search for people's photos by name with those search engines - something you can't do
with Clearview's App. This identity-based discrimination triggers heightened scrutiny under the
First Amendment.
C.

The Complaint Pleads No Facts Supporting its "Surveillance" Allegations

The Complaint does not plead facts sufficient to support its new claims in its Opposition
that Clearview's app engages in surveillance.196 Nothing alleged in the Complaint meets the
dictionary definition of surveillance as "keeping close watch over someone."197 All that
Clearview's app does is match photos; there is no allegation anywhere that it is be used for real
time surveillance or tracking. It's a public photo search engine, not Alexa, Siri, Facebook, or a
Smartphone.
Clearview’s search engines, both those that index and cache public photos from the
internet, as well as its facial biometric algorithm that searches these cached public photos, are
computer languages that expressively communicate information to a computer user. For First

196

Pl. Opp. at 29.
Merriam Webster's defines, “surveillance” as “close watch kept over someone or something (as by a
detective) Merriam Webster Dictionary, 2020, https://www.merriam-webster.com/dictionary/surveillance; The
Oxford English Dictionary defines surveillance as: "Watch or guard kept over a person, etc., esp. over a suspected
person, a prisoner, or the like; often, spying, supervision; less commonly, supervision for the purpose of direction or
control, superintendence," Oxford English Dictionary, 2020, available at
https://www.oed.com/view/Entry/195083?redirectedFrom=surveillance#eid
197

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 Amendment purposes this is no different than Google, Bing, or Yahoo. The only difference is
that Clearview collects far less information than any of them.
The State engages in content-based discrimination when it says “[t]he Clearview App is
not the type of software that has been held to merit First Amendment protections.”198 By
focusing on the type of speech uttered by Clearview, the State proves Clearview's point.
D.

Clearview’s Search Engine Results Are Protected Speech under Corley

Clearview’s search engines operate two-fold: they index and cache public photos from
the internet and apply a facial biometric algorithm to search those photos. This is protected
expressive speech. The end result offers the user a choice to investigate further by proceeding to
a third party site or to reject the proposed result. Clearview’s search engines and results are
squarely within the holding of Corley - "Computer code conveying information is 'speech' within
the meaning of the First Amendment."199
Computer languages and their algorithms are the protected expressive speech of the 21st
century. In Zhang v. Baidu.Com,200 the Southern District for New York rejected the claim that
speech produced by algorithms was not protected by the First Amendment, the claim advanced
here by Vermont. “[T]he algorithms themselves were written by human beings, and they
‘inherently incorporate the search engine company engineers’ judgments about what material
users are most likely to find responsive to their queries ….”201 Subsequent cases have followed

198

Pl. Opp. at 26 (emphasis added).
Universal City Studios v. Corley, 273 F.3d 429, 450-51(2d Cir. 2001).
200
Zhang v. Baidu.Com, 10 F. Supp. 3d 433 (S.D.N.Y. 2014).
201
Id. at 438-39.
199

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 Zhang, finding consistently that search engine results are speech constitutionally protected by the
First Amendment.202
The effort by the State to depict Clearview’s speech as non-communicative code, and
therefore not speech, is wrong. This Court should dismiss the Complaint because it violates the
First Amendment.
VIII. The State is Silent on 20 Years of Computer Law Contradicting its Arguments
The State claims the right to regulate access and use to information on the internet. Yet it
has no rebuttal to the holdings of the important computer law cases of the last twenty years cited
in Clearview's Motion to Dismiss. This body of computer case law contradicts the State's
theories underlying its causes of action.203 It holds that violating terms of service agreements, by
screen scraping, or lying, isn't computer fraud. The Attorney General neither discusses nor cites
any of it. This is particularly glaring when it comes to the Ninth Circuit's 2019 decision HiQ v.
LinkedIn, which holds that the fact patterns Vermont is complaining about are entirely legal.204
The majority of the rest of that case law, including the Ninth and the Second Circuit in
United States v. Nosal205 and United States v. Valle,206 hold similarly - that violating terms of
service agreements, employment agreements, and the like, are not computer fraud.207 The State

202

See Google, Inc. v. Hood, 96 F. Supp. 3d 584 (2015) ([D]developing jurisprudence teaches that
Google’s publishing of lawful content and editorial judgment as to its search results is constitutionally protected.”)
(citing Zhang v. Baidu.Com, 10 F. Supp. 3d 433 (S.D.N.Y. 2014)); E-Ventures Worldwide, L.L.C. v. Google, Inc.,
188 F. Supp. 3d 1265, 1274 (2016) (“The Court has little quarrel with the cases cited by Google for the proposition
that search engine output results are protected by the First Amendment.”) (citing Zhang v. Baidu.Com, 10 F. Supp.
3d 433 (S.D.N.Y. 2014)).
203
Clearview's Motion to Dismiss incorporates by reference its Opposition to Vermont's Motion for a
Preliminary Injunction, which lays out Clearview's arguments in detail. State of Vermont v. Clearview, AI, Inc. Opp.
to PI. (Index No. 226-3-20, at 11-29).
204
HiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985 (9th Cir. 2019).
205
United States v. Nosal,676 F.3d 854 (9th Cir. 2012).
206
United States v. Valle, 807 F.3d 508 (2d Cir. 2015).
207
See Nosal, 676 F.3d 854 (holding violation of employment policy/agreement wasn't computer fraud);.
Valle, 807 F.3d 508 (holding violation of NYPD computer use policies wasn't computer fraud); United States v.
Drew, 259 F.R.D. 449 (C.D. Ca. 2009) (holding that terms of service violations weren't computer fraud); Sandvig v.

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 ignores the discussion in these cases about the public policy dangers to the free exchange of
information on the internet that its views pose.
The State further ignores the fact that the United States Supreme Court just granted
certiorari on the question of whether violation of an employer policy violates the Computer
Fraud and Abuse Act such that it constitutes unauthorized access to a protected computer.208 The
existence of a circuit split on this vital issue is evidence that there is no well-established public
policy regarding what the State calls "screen scraping." Clearview adequately briefed these
issues in its Motion to Dismiss and just reiterates that HiQ v. LinkedIn and Sandvig I and II are
particularly persuasive in regard to the issues in this case.209 Given that the State cannot reconcile
its legal theories with the computer case law of the last two decades, this Court should dismiss its
Complaint with prejudice.

CONCLUSION
If this Court dismisses the Complaint, it will harm no Vermont consumer. Dismissal will
not prejudice Vermont consumers from bringing an action against Clearview if there is ever an
actual or imminent, particular and concrete, injury.
But there is none here, just an inchoate policy position better suited for the lecture circuit
than a Court of Law. The State lacks a cognizable legal interest because its policy desires exceed
its discretion under the Vermont Consumer Protection Act. The VCPA predicates the Attorney
General's powers on an explicit statutory, judicial, or well-established public policy right. The
State has none of this. It attempts to cover this fact up by alleging legal conclusions

Sessions, 315 F. Supp. 3d (D.D.C. 2018) ("Sandvig I'); Sandvig v. Barr, 16-CV-1368 2020 U.S. Dist. LEXIS 53631
(D.D.C. March 27, 2020) (Sandvig II); see generally Opp. to PI. at 34-42.
208
Van Buren v. United States, 940 F.3d 1192 (11th Cir. 2019) petition for cert. granted, No. 19-783 (U.S.
Apr. 20, 2020).
209
See Opp. to PI. at 34-42.

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 masquerading as facts. This Court should dismiss the Attorney General's speculative Complaint
with Prejudice to conserve judicial resources and spare Clearview the burden and expense of
defending against baseless causes of action in a jurisdiction in which it has no customers and
does no business.
Date: May 22, 2020

Respectfully submitted,
/s/ Tor Ekeland
Tor Ekeland
Pro Hac Vice, VT Pro Hac Vice No. 9002002
Tor Ekeland Law, PLLC
195 Montague Street, 14th Floor, Brooklyn, NY 11201
(718) 737-7264
tor@torekeland.com

Timothy C. Doherty, Jr., VT Bar No. 4849
Tristram J. Coffin, VT Bar No. 2445
Downs Rachlin Martin PLLC
199 Main Street, PO Box 190,
Burlington, VT 05402-0190
20001923.1

(802) 863-2375
TDoherty@drm.com
TCoffin@drm.com

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