Attorney General T.J. Donovan has prevailed against a motion to dismiss filed by Clearview AI in the lawsuit to stop the facial recognition company from collecting and selling images of Vermonters. The Court’s ruling means the case, which was filed in April, may now move forward.
In its motion, Clearview failed to persuade the Court that it has a First Amendment right to engage in its facial recognition surveillance practices and “near absolute immunity” from suit under Section 230 of the Communications Decency Act. Clearview also argued that the state’s claims were void for vagueness under the Constitution and that the state lacked standing to bring the suit. The Court rejected all of these arguments.
“We are pleased with the Court’s ruling and will continue litigating this case to protect Vermonters’ privacy rights,” said Attorney General Donovan. “Clearview’s practices are disturbing and offend public policy.”
The Court noted that the First Amendment does not protect deceptive statements including those allegedly made by Clearview about Vermonters being able to remove themselves from the database. The Court also denied Clearview’s argument that the First Amendment protected other allegedly unfair conduct, such having bad data security, because it was “non-expressive speech” and therefore not protected by the First Amendment.
The Court also held that Clearview is not protected by Section 230 of the CDA, a law which shields platforms like Twitter and Facebook from liability for what others post there. This case involves allegations about how photographs are collected through screen scraping and applied facial recognition, not their redistribution.
Lastly, the Court found that the state had adequately alleged that Clearview’s actions offend public policy, and are immoral, unethical, oppressive or unscrupulous – factors that support an unfairness claim under the Consumer Protection Act. It also held that exposing Vermonters to unwanted surveillance and marketing its product to law enforcement would be likely to cause substantial injury to Vermonters.
