October 3, 2022

Volume XII, Number 276

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October 03, 2022

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Following Court Win on BIPA Claims, FTC Ramps Up Investigation into Company’s Sharing of Biometric Data

Last year, CPW covered a litigation win by Clarifai, Inc., a technology company specializing in artificial intelligence, when a federal court granted its motion to dismiss claims brought under Illinois’ Biometric Information Privacy Act (“BIPA”) in Stein v. Clarifai, Inc., No. 20 C 1937, 2021 U.S. Dist. LEXIS 49516 (N.D. Ill. Mar. 16, 2021). While the court’s findings dismissed a putative class action, the Federal Trade Commission (“the Commission”) had already opened an investigation into a data-sharing incident in 2014 that gave way to the litigation. Last month, the FTC took a big step to further that investigation regarding Match Group (“Match”), the parent company of the entity from whom Clarifai pulled facial data.

As a brief reminder, last year the Northern District of Illinois found that it lacked personal jurisdiction over Clarifai, which Plaintiff claimed had violated BIPA by harvesting facial data from dating site OkCupid without obtaining consent from the website’s users or making the necessary disclosures. The court found that Clarifai had only sold data to two customers in Illinois, which had resulted in only seven cents of revenue; these de minimis sales did not suffice to establish personal jurisdiction over Clarifai.

Although the civil litigation was dismissed last year, in 2020, the Commission issued a civil investigative demand (“CID”) to Match, the parent company of OkCupid, as part of its investigation into the 2014 data-sharing incident between OkCupid and Clarifai that gave rise to the litigation. The investigation, which remains ongoing, is aimed at determining whether “unnamed persons, partnerships, corporations, or others are engaged in, or may have engaged in, deceptive or unfair acts or practices related to consumer privacy and/or data security,” based on information indicating that Clarifai had obtained photos and user data from OkCupid and used the data in a face database Clarifai had built to train its facial recognition technology.

Last month, the Commission filed a petition in the U.S. District Court for the District of Columbia requesting compliance with the CID. While the petition acknowledges that Match has produced some responsive documents, the Commission claims that numerous other documents and communications related to the data-sharing incident were being withheld since 2020 based on “improper and overbroad assertions of attorney-client privilege and the work product doctrine.” The petition requests that Match produce the documents it has withheld, or, alternatively, that the Court conduct an in-camera review of the documents.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 167
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About this Author

Kristin L. Bryan Litigation Attorney Squire Patton Boggs Cleveland, OH & New York, NY
Senior Associate

Kristin Bryan is a litigator experienced in the efficient resolution of contract, commercial and complex business disputes, including multidistrict litigation and putative class actions, in courts nationwide.

She has successfully represented Fortune 15 clients in high-stakes cases involving a wide range of subject matters.

As a natural extension of her experience litigating data privacy disputes, Kristin is also experienced in providing business-oriented privacy advice to a wide range of clients, with a particular focus on companies handling customers’ personal data. In this...

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Christina Lamoureux Litigation Attorney Squire Patton Boggs Washington DC
Associate

Christina Lamoureux is an associate in the Litigation Practice in the Washington DC office. She represents a wide variety of clients in complex commercial matters.

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Margaret Booz is an associate in the Litigation Practice. Prior to joining the firm, Margaret clerked for the Honorable James C. Dever III of the U.S. District Court for the Eastern District of North Carolina. Margaret leverages her experience as a federal judicial clerk to represent a wide variety of clients in complex commercial matters.

Margaret graduated from the University of Virginia School of Law, where she was an online editor for the Virginia Law Review and a Karsh-Dillard Scholar. While in law school, Margaret participated in the Child...

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