Macy’s Faces Privacy Class Action Over Alleged Use of Clearview Facial Recognition Software

An Illinois woman has filed a class action lawsuit accusing Macy’s of invasion of privacy through the use of Clearview AI facial recognition software.

Macy’s customer and lead plaintiff Isela Carmine filed her class action lawsuit after reports that the retailer used the Clearview software.

According to the complaint, The New York Times reported in January that Clearview kept a “dystopian surveillance database” that was “leased to the highest bidder.” 

In addition, a BuzzFeed News article revealed Clearview was working with more than “2,200 law enforcement agencies, companies and individuals” worldwide, the class action complaint says.

Several other news outlets revealed Macy’s was among several other businesses and government entities that used the Clearview database.

Cincinnati.com reported law enforcement agencies use the Clearview tool to identify crime victims and criminals by comparing crime scene images to other images on the web, including those on public social media accounts.

Because Carmine has “a widespread and active social media presence,” she believes her personal information is contained within Clearview’s database, the complaint says. 

Carmine claims she “has experienced anxiety, stress and other emotional distress based on her inclusion in the surveillance database and the unauthorized, for-profit acquisition and use of her biometric information by Defendant Macy’s.”

According to the class action lawsuit, Macy’s uses in-store video surveillance to capture customers’ images, then sends the images to Clearview. Macy’s is alleged to have run more than 6,000 customers’ identities through the database, which includes the photos and personal data of millions of Americans.

The complaint alleges Clearview acquired all that data by “scraping” publicly available online platforms such as Facebook and Instagram.

Clearview has run 3 billion photos through facial recognition software, thereby extracting each face’s biometric data, the complaint says.

“Any private citizen can be identified by uploading a photo to the database,” the complaint states. “Once identified, the end-user – here Macy’s – then has access to all of the individual’s personal details that Clearview has also obtained.”

The plaintiff contends Macy’s use of the biometric information violates Illinois’ Biometric Information Privacy Act (BIPA).

BIPA requires private entities, such as Macy’s or Clearview, in possession of biometric data to develop and make available to the public a written policy that establishes a retention schedule for the data and guidelines for destroying the information, the class action lawsuit claims.

The plaintiff says Macy’s has not provided any such policy.

BIPA dictates that private entities are “prohibited from collecting, capturing, or otherwise obtaining a person’s biometric information or identifier” unless it informs the person in writing that their data is being collected or stored, the class action lawsuit says. The entity collecting the data must also state, in writing, the specific purpose for collecting the data and the length of time it will be stored and must receive a written release from the subject.

Under Illinois law, private entities are only to disclose or share a person’s biometric information in certain situations, such as in order to comply with a warrant or subpoena, the complaint says.

Macy’s failed to inform the plaintiff or any Class Member about all this, and the plaintiff claims neither she nor any putative Class Member have provided a written release for the retailer. 

BIPA also prohibits private entities from selling, leasing or otherwise profiting from people’s biometric data, the complaint says.

But Macy’s is actively profiting off the plaintiff’s and Class Members’ information through improved security or marketing, the class action lawsuit alleges.

In addition, an entity such as Macy’s that possesses a person’s biometric information must “use a reasonable standard of care for their industry” to protect the information.

Each individual violation under BIPA entitles a person to recover actual damages or $1,000, whichever is greater, for each negligent action, the complaint explains. For intentional or reckless violations, that amount increases to $5,000 per violation.

The law also allows for additional financial relief to be awarded by the court.

The plaintiff also alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act.

“Macy’s knew that to covertly collect personal and private data and biometric information would violate the privacy rights that BIPA was enacted to protect and that the violations would cause substantial harm to Illinois residents,” the Macy’s class action lawsuit maintains.

The plaintiff and Class demand a jury trial and seek actual and punitive damages, court costs and expenses, reasonable attorneys’ fees and any other relief deemed appropriate by the Court.

Are you a Macy’s customer? Do you worry that your biometric information has been run through the Clearview database? Let us know in the comments.

The plaintiff is represented by Michael Drew of Neighborhood Legal LLC and Michael Wood Community Lawyers LLC.

The Macy’s Customer Facial Recognition Class Action Lawsuit is Isela Carmine, et al. v. Macy’s Retail Holdings Inc., Case No. 1:20-cv-04589, in the U.S. District Court for the Northern District of Illinois, Eastern Division.

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