Litigants Fight Over Source Code in Clearview AI Biometric Privacy Litigation

In the multidistrict litigation with Clearview AI Inc. and its leadership, the plaintiffs have moved for an order finding that the company’s source code does not constitute “highly confidential information.” Interim class counsel argued on behalf of the consumer plaintiffs, that the designation has interfered with the lawyers’ ability to review and use the source code.

The class action proceeding in Chicago, Ill. Recently survived Clearview’s dismissal bid. The court found that the plaintiffs, who allege they had their photographs covertly scraped from the internet and their biometric information cataloged and recorded by Clearview to create a facial recognition database, stated claims for relief under the seminal Illinois Biometric Information Privacy Act (BIPA) and other state privacy laws.

In this week’s discovery motion, the plaintiffs claim that Clearview has no right to designate the source code as highly confidential. The company neither requires its employees nor contractors to sign non-disclosure or non-compete agreements to ensure protection of the source code nor does it require engineers who work directly with it to enter into such agreements.

In addition, Clearview has not supported its position with evidence showing that it restricts employee access with passwords or encryption, the filing claims.

The plaintiffs say that the highly confidential designation has created a logistical burden: at Clearview’s insistence, two source code reviews have taken place in New York City, even though the plaintiffs’ consulting experts are in California; transportation and accommodation have cost nearly $5,000; and the plaintiffs had to retain a second expert owing to Clearview’s inability to accommodate the plaintiffs’ initial proposed review dates.

Though the filing does not specify the importance of the source code to the plaintiffs, it stresses that easier access thereto is essential. 

The case is proceeding through discovery, though a recently-filed amended complaint expanded the defendants to include an additional class of retailers, like AT&T, Kohl’s, and Walmart, who allegedly used Clearview’s database to search for and identify unknown people.

The plaintiffs are represented by interim lead counsel Loevy & Loevy and other counsel Bursor & Fisher, P.A., Hedin Hall LLP, Neighborhood Legal LLC, Community Lawyers LLC, and Webster Book LLP.

Clearview is represented by Jenner & Block LLP and Cahill Gordon & Reindel LLP.