Class Action Claims Macy’s Used Clearview AI Database to Identify, Track Illinois Shoppers

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A proposed class action alleges Macy’s Retail Holdings, Inc. has overstepped an Illinois biometric privacy law by using controversial tech outfit Clearview AI’s facial recognition database to identify and track shoppers on store security cameras. 

According to the 16-page lawsuit, Macy’s has run the identities of more than 6,000 individual customers through Clearview AI’s database, which contains billions of photos and troves of personal and private information acquired by the company by scraping and/or harvesting data from existing internet-based platforms such as Facebook, Instagram and Twitter.

“Any private citizen can be identified by uploading a photo to the database,” the complaint reads. “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 lawsuit, citing a February 2020 BuzzFeed News report, says Macy’s is one of more than 2,200 entities who have used Clearview AI’s surveillance database for operational purposes.

Macy’s stores are equipped with video surveillance equipment that captures images of visitors and customers, the suit says. With this equipment, Macy’s sends or has sent pictures of those who’ve visited its stores to Clearview in order to identify the individuals and obtain their personal information, the lawsuit alleges.

After obtaining images from Macy’s, Clearview then runs the photos through its software to extract individuals’ biometric data, in particular a collection of vectors and/or other data points that allow faces to be “classified, searched and indexed,” according to the case.

A major concern, the suit relays, is that anyone with access to Clearview AI’s database, including a reseller of the information contained therein or an end-user such as Macy’s, can upload a single photo and identify the person in the image in real-time. 

“A single picture on the internet means that any private citizen can immediately be identified and tracked,” the lawsuit says.

Under the Illinois Biometric Information Privacy Act (BIPA), a private entity in possession of consumers’ biometric identifiers, including facial and fingerprint scans, must develop a written, publicly available policy establishing a retention schedule and guidelines for the permanent destruction of collected and stored data, the case says. According to the lawsuit, Macy’s “has not provided any policy whatsoever” with regard to either a retention schedule or destruction guidelines, and is prohibited under the BIPA from “collecting, capturing, or otherwise obtaining” a consumer’s biometric information unless it first:

• Informs the individual in writing that information or a biometric identifier is being collected or stored;
• Informs the individual in writing of the specific purpose and length of term for which the information or identifier is being collected, stored or use; and
• Receives a written release from the individual.

At no relevant time has Macy’s informed proposed class members that it’s come to obtain their biometric information, the suit alleges, claiming additionally that neither the plaintiff nor any proposed class member executed a written release to the defendant.

“Macy’s is actively profiting off of Plaintiff’s and each member of the putative class’ information or identifier through improved security and/or through marketing,” the lawsuit claims.  

In addition to the state’s BIPA, the complaint alleges Macy’s has violated the Illinois Consumer Fraud and Deceptive Business Practices Act given consumers have received no notice upon entering a store that they will be photographed or filmed and their faces will be run through Clearview AI’s database. 

“Macy’s secret identification of its shoppers based on their photographs is an unfair business practice,” the case argues.

The lawsuit looks to represent all individuals who reside or resided in Illinois and whose biometric identifier or information is or was contained in the Clearview AI database at any time and subsequently provided to Macy’s. 

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