The federal judge held that BIPA passes this test. The O’Brien test considers, among other factors, whether the government has “an important interest,” and whether the speech restraint is “greater than necessary” to advance that interest. O’Brien (1968), which concerned the prosecution of a person who publicly burned his draft card to protest the Vietnam War. The federal judge explained that it would apply the First Amendment’s “intermediate scrutiny standard” for a restraint on activity that has “both speech and nonspeech elements.” This test originated in United States v. This is an important victory for our privacy over Clearview’s profits. This week, the judge in the federal cases rejected Clearview’s First Amendment defense, denied the company’s motion to dismiss, and allowed the lawsuits to move forward. We disagree and filed an amicus brief saying so in each case. In both federal and Illinois courts, Clearview argues that the First Amendment bars these BIPA claims. It also faces another suit, brought by the ACLU and ACLU of Illinois, in state court. Clearview now faces many consolidated BIPA lawsuits in federal court. For example, police in Miami worked with Clearview to identify participants in a Black-led protest against police violence.Ĭlearview’s faceprinting violates the Illinois Biometric Information Privacy Act ( BIPA), which requires opt-in consent to collect someone’s faceprint. One of the worst offenders is Clearview AI, which extracts faceprints from billions of people without their consent and uses these faceprints to help police identify suspects. So EFF supports bans on government use of this dangerous technology, and laws requiring corporations to get opt-in consent from a person before taking their faceprint. Face surveillance is a growing menace to racial justice, privacy, free speech, and information security.
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