Melissa Thornley v. Clearview AI, Inc.
984 F.3d 1241
7th Cir.2021Background
- Clearview AI scraped publicly available social-media photos, converted them into biometric facial scans with metadata, and stored them in a large database hosted in New York/New Jersey.
- Thornley (and two co-plaintiffs) sued under Illinois’s Biometric Information Privacy Act (BIPA). After voluntarily dismissing an earlier, broader suit, she refiled in state court alleging only a violation of BIPA § 15(c) and defining a class limited to persons who suffered no injury other than statutory aggrievement.
- § 15(c) forbids a private entity in possession of biometric identifiers or information from selling, leasing, trading, or otherwise profiting from that data.
- Clearview removed the refiled action to federal court; Thornley moved to remand, arguing the complaint alleged only a "bare procedural violation" and not a concrete, particularized injury required by Article III.
- The district court remanded for lack of Article III standing; on interlocutory appeal under CAFA removal rules, the Seventh Circuit affirmed, holding the complaint alleged only a generalized regulatory violation (no concrete, particularized injury).
- The panel contrasted this result with prior Seventh Circuit BIPA decisions (Miller, Bryant, Fox), which found standing where plaintiffs pleaded particularized harms from collection, retention, or lack of consent; the concurrence emphasized the procedural opportunity to amend and broader debates over standing for intangible harms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III injury-in-fact for a claim under BIPA § 15(c) | Thornley: inclusion of her biometric data in Clearview’s database and Clearview’s profit from data suffice as injury (or at least do not preclude state-court adjudication). | Clearview: federal court has jurisdiction only if plaintiffs allege a concrete, particularized injury; these plaintiffs pleaded only statutory aggrievement. | No standing: plaintiffs alleged a generalized regulatory violation under § 15(c) without a concrete, particularized injury. |
| Legal effect of § 15(c) prohibiting profit from biometric data | Thornley: selling/ profiting from biometric data is a tangible invasion of privacy that can create concrete harm. | Clearview: § 15(c) is a broad market-regulation similar to § 15(a); absent allegation of individualized harm, it yields only a bare procedural violation. | § 15(c), as pled here, functions as a general prohibition on market transactions; without allegations of individualized harm, it does not satisfy Article III. |
| Burden to establish federal jurisdiction on removal | Thornley: (implicitly) plaintiff controls forum; remand proper if complaint pleads only state-law statutory violation without concrete injury. | Clearview: as remover, bears burden to show plaintiffs have Article III standing to keep case in federal court. | Remover bears burden; Clearview failed to show Article III standing on the complaint’s allegations. |
| Effect of narrowed class definition (excluding members with concrete injury) | Thornley: narrow class shows plaintiffs’ intent to litigate in state court and avoid federal jurisdiction. | Clearview: plaintiffs cannot avoid federal jurisdiction by pleading a narrowly defined class that alleges only statutory aggrievement. | Plaintiff may define class narrowly; the court evaluates standing based on the actual allegations. Narrow class that pleads only statutory aggrievement supports remand. |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Article III requires a concrete and particularized injury; intangible injuries can be concrete but bare procedural violations may not suffice)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing elements: injury-in-fact, causation, redressability)
- Thole v. U.S. Bank N.A., 140 S. Ct. 1615 (2020) (restates Article III standing requirements)
- Miller v. Southwest Airlines Co., 926 F.3d 898 (7th Cir. 2019) (BIPA: standing where alleged harms could materially affect employment terms)
- Bryant v. Compass Group USA, Inc., 958 F.3d 617 (7th Cir. 2020) (BIPA §15(a) claim lacking particularized injury; §15(b) claim alleging lack of notice/consent supported standing)
- Fox v. Dakkota Integrated Systems, LLC, 980 F.3d 1146 (7th Cir. 2020) (unlawful retention of biometric data can be a concrete, particularized privacy injury)
- Standard Fire Ins. Co. v. Knowles, 568 U.S. 588 (2013) (plaintiff cannot bind putative class pre-certification to defeat CAFA removal)
- Rosenbach v. Six Flags Ent. Corp., 2019 IL 123186 (Ill. 2019) (Illinois recognizes statutory aggrievement under BIPA for state-law relief)