are viewed as a whole when the entire complaint is read it is very clear that they are alleging that they have suffered a wrong that is both contrary and particularly the harm that they claim to have suffered is contrary for the same reason the harms that whether the plaintiff's information has been so least traded or otherwise been the subject of a profitable transaction your honor i can say that we know that at least one of the three points is included in the clearview database and that there are photographs and information about that individual who who have been incorporated and there has been a facial factoring performed on it was one  that these facts made me think of is the clapper against amnesty international where things were happening but there was nothing concrete to show that it happened to these particular people and of course as we've been reminded you think there is a distinction here between clapper where you have speculation piled upon conjecture before you get to any harm sheir i think there are a bunch of court said but let me say a more charitable view of humor of the briefs in clapper was that people were perfectly aware that their long distance tell you their international telephone calls were were being monitored they just didn't know which ones but it had a chilling effect on all of them well and certainly just what and that was certainly the view of the seven justices in that case but i do think that here you have something that slightly different perhaps would help if i began by explaining a little bit drawing at least from the allegations in the complaint playing what exactly it is that is going on here with clear views database  the way the database oh sorry to interrupt again but why one why isn't it sufficient to say that the plaintiff is master of the complaint master of the complaint can decide what jurisdiction it will appeal to and our plate of soup decided to appeal to a form of jurisdiction they will in state court but not federal court and the the doctor in the plaintiff's gets to choose these things it's a pretty long there is an injury and therefore there is article three standing the plaintiff cannot similarly allege that there is no injury and therefore there is no article three standing i think the court has not while going to question i'm asking is why of say we we don't object to our pictures being in the public domain but we have ject a capitalist transactions among consenting adults because we are followers of karl marx  and the problem in this case is the capitalist transactions of occurred we don't think that that interests us except ideologically and there we are your sincerely the players why isn't that all we need to know don't think you are addressing my question we suppose we read their complaint as saying we have this interest we are don't know why did to have this information seen by all three hundred and fifty million people in the country but we are communists we don't want it so your sister with the plaintiffs right is that a case but of the one federal court i believe it described it the interest is ideological we don't like market transactions it's not that were injured by them it's the we don't like them that's that's the question i'm trying to get you to confront you not really confronting it well your honor i think the reason that they would have a claim in the st place is because of the illinois statute that gives them and all the right to control their information and how it's disposed  if you allow someone to dispose of that information in a way that's for profit that's what's forbidden that's why they're able to state a cause of action in the st place and again it's the int that is what gives them a claim and that is the harm that is sufficient for them to be in federal court and as a matter of kaffir we are given the right if there is something that can go to federal court as a constitutional matter and all of the other i think again going back to how this database operates in the st instance sort of explains that the way this works is that these in these photographs were downloaded off the public internet and there's a process  engine when a user then comes along to file any some familiar i mean i hate to cut you off but time is short i'm quite familiar with that but what i'm trying to get at i'm looking at fifteen c and all it says is no private entity in possession of a b ometric identifier and i take it we all are content for present purposes to call this to call the the digital information that is derived from the photographs biometric identif what if i didn't say we probably would raise an objection to that on the merits but for present purposes at the moment we're letting that be ok and it's just a statutory point but anyway it just says that i don't see anything talking about people being able to control these transactions i don't see anything about them getting a share of the money i don't see anything about judge easterbrook hypothetical about just you know we don't want  dealing and making money off of our personal you know retinal scans or whatever the the meditate on our photographs it just says you can't sell lease trade or otherwise profit and the apparently what the illinois legislature was doing was trying to shut down this market that seems like a general public act to me not something particular to any individual in the database well the judge would i just agree and i think it goes back to i think what's helpful is to go back to the rosenbach decision from the illinois supreme court which says that the rule all of the sections fifteen provisions in their words were that the general assembly has hot aside that individuals possess a right to privacy end and control over their biometric identifiers one of the ways that that control is exercised is for bidding a rd party a private entity from coming along and selling the biometric the biometric nice understand that but as you will agree if you look at bryant there are some provisions of the law that are just so broadly directed to the public you know publishing your data retention policies and having these things in place that th ere is no individual right to sue about that there's no article three standing there other things are different so you have to look at each one well and the court said that in with respect to that fifteen a claim that that injured that that course of action was not particularly pleased and i think here it's very much is because the plaintiffs whole theory about why they are statutorily aggrieved is that their information is contained within the database and their information that is being used used for profit against their will and they're speculating that their information has been used they don't know well your honor certainly they've alleged that they have database is worth anything to anybody is because it has three billion images in it not a half a dozen right yes that's right which ok let me ask you if i could mr pearl it's pretty well established as i understand the wadded say diversity of cases plaintiffs binding pre removal stipulation that she will take no more than seventy five thousand dollars in damages is sufficient to defeat removal even if a claim could be made or even any reasonable damage demand would be for more than seven tries why is this different well i think it's different judge hamilton for the reason that what the plaintiffs have alleged here is that they have no injury except that they have been statutorily agree and i think our argument is that when you are statutor ved under section fifteen c that you by definition have suffered a harm that is cognize a bulls a matter of article three of the constitution that that that should really go hand in hand and again it's because of this invasion this intrusion on this right not to have your information sold and one of the problems i guess one of the things that i'm struggling with in this case is the is that this is not a typical kind of injury this seems to be much more along the lines of unjust enrichment or maybe more something more akin to copyright or have an infringement in the sense that the point of can't point to being out of pocket through very specific harm except that the right has been taken away has been used for profit by someone else is that the right way to think about this you who were harm when you've had your right of publicity invaded and the federal courts exercised jurisdiction over those claims for a number of years and we want to raise one concern that i have particularly when the roles of the parties are flipped the way they are standing can you give us any assurance that that would not happen since particularly since you're a social issue i would imagine judicial stoppel would preclude us from doing that jim not sure that it would on jurisdiction on a jurisdictional grounds and it's something that well i be allowed to talk out of both sides  jurisdictional issues from time to time and get away with it so that they do i i i i i don't know that i have ever tried that myself but i would imagine that the court would probably not react well i think you also leave the he said by definition a violation an allegation of a violation of the statute creates article three standing and that is exactly precisely what the supreme court has said is not the case and what this court has said is not the case in any instance where it's where a claim is based on a statutory violation whether it's procedural whether it's substantive whether it's personal whether it's public in any instance with the supreme court and this court  said there must be allegations supporting right and i understand mr gall but i had understood his point to be that be alleged violation of this statute necessarily carries thing i mean with it because of the individual interest in one's own biometric information yes i understand that to judge i don't i don't see how that's a procedural in the so called beer procedural violation of smoke you know well the issue judge is appellate i agree it's not a i agree that the defendant's position here is not a bare procedural violation claim but the but the cases have moved away from focusing on procedural versus substantives and that's the series of cases that the th circuit issued in the center made clear that these principles apply the principle that there have to be allegations of specific harm actual harm to the plaintiffs make they apply whether it's a procedural or golub let me ask you this question i think we can agree that a person's private information is in a sense an asset of that person and what some part see could be read to do is essentially just to shut down the outside market in sales of as the statute puts it a person's or customers biometric identifier or biometric information so it does get down even if there are three billion of them you know it's not three billion people but let's assume all three hundred and fifty thousand people in the united states have had this type of information if b p section fifteen c shuts down the market then each of those people now is free to keep confidential to spread on the pages of whatever you know blogs they like to write or whatever they have it becomes theirs again it's not somebody else selling it so why isn't that enough to tie it down to a particular person's interest well st of all there's there is no consent or noticed provision in fifteen c fifteen c is an unqualified and when i reach out down the market entity may sell children for adoption yes it it that's i agree that it's the same kind of concept and no no parent or or other person could consent to that there's no the defendant is making the argument about axis i think control well section b and section day of the et allow the parties to exercise control over how their biometric data is maintained or how it's disseminated there's no control here this is you can't consent to it you're not entitled to notice this is a regulatory provision and the issue is is there any harm beyond the statutory violation and what i was trying to say in response to judge hamilton's question  retention of biometric data in illinois which is what the book covers are not implicated in this case and that in and everyone in illinois has the same interest in your no no it's because nothing happened in illinois and what happened here was we drafted in regional case against against clearview and we revised it was we saw their position in federal court you know opposition to the other cases and what they say is we scrape the photographs which is probably legal by the way because the photographs are publicly available we scrape them on servers in new york and new jersey we converted them to buy metric data on servers in new york and new jersey when he user what a user complaint can choose to not argue injury the flipside is why the defendant as the party who filed the notice of removal and therefore is the one appealing to federal jurisdiction can't allege injury review suppose it were diversity case and your complaint alleged that you suffered a seventy thousand dollars wrong in the defendant files a notice of removal and says the wrong is not seventy thousand dollars it's one hundred thousand we would ask whether the recovery of one hundred thousand was legally impossible because it's the notice of removal that's the document bringing the case to federal court so the question i have for you is why we should look to your complaint rather than to the defendant's notice of removal to determine whether the hamilton said in a question to mr bercow if the plaintiff's files a binding undertaking never to it except a cent more than seventy five thousand dollars that's conclusive but if the players just counselor the reason that's not happening is because of the standard fire in snow is case in which the supreme court said that a class representative cannot give such a binding undertaking on behalf of the class members or the class a certified question that i have for you about standard fire is whether you think you can use your class definition why you think you can use the class definition  fox helmed that a transfer can be an article three injury just because it increases the risk of disclosure and i understand subsection seed to be not only can you not transfer the biometric data that's another subsection but you can't transfer it for money but a transfer for money is a subset of all transfers and so one would think based on the conclusion in fox that there is an article three injury unless this complaint or the notice of removal or the two of them together make recovering for any such injury impossible that's why i'm pursuing my question ok if it all right there are there are there are several responses well of which are important to that to that question what in fucks there was a specific allegation in the complaint that the fifteen a violation that the allegation was you didn't comply with the retention policy that you that you were required to establish there was a specific allegation in the complaint that as a result of that noncompliance you had the company had retained the data beyond the retention period after fox's employment had ended with the company that was the injury in fox the injury in fox was not the lack of compliance that was the statutory violation the injury was d that they kept the data when they weren't supposed to there is no data kept in illinois by this company and that's the that is the critical point of of the complaint here it's the insert to judge him to his question about what they were allowed to allege that defined the class and respectfully fance to your question also judge easterbrook there is no disclosure of biometric data the only thing there is very very profiting from it however yes that's the statutory violation but what the what the the underlying interest in the statute the concrete interest that was recognized in bryant was the interest in the invasion of to protect to protect against the invasion of privacy that's what patel said the statute is true is is the tort law analog and to give you control by through the information  thing that's disclosed are photographs so that we only say there's no invasion of privacy when we say in illinois and the reason i'm saying it was no use because illinois law talks about extraterritorial  application and limits limits statutes when here when they don't specifically say they are they have extraterritorial education here there's no disclosure of anybody magicked out in illinois there's no disclosure anywhere but by metric data because it's all in their database in all their disclosing or publicly available photographs which are not protected by people so maybe that's going to harm i'm wondering actually as i listen to you and look at this class definition i know that the standards of course in illinois courts for bringing cases of this sort are more lenient than the standards under article three but illinois may have some standards of its own i wonder if you have tried so hard to  lege no injury that you may find yourself with nothing to litigate if you go back to illinois well i certainly hope that wasn't that wasn't our intention i'm sure of what i think listening to the the that clearview has profited from biometric data that's the statutory violations so are you making an argument somewhat similar to the one that the supreme court entertained enfold where the court repeatedly says anyway this case comes out you're still going to be in the same position you know and so you were going to get your defined benefit every month no matter what and that was one signal that there was really not the appropriate stake on the part of the yes it's exactly athol because no matter what happens there's never going to be disclosure of biometric data in illinois want it clear if you does not do that and will no matter what happens there's never going to be biometric disclosure of anywhere because the database doesn't do that and with all said there's another aspect of thought that's very significant this goes to judge easter brooks question to me in full after justice cavanaugh went through the four arguments for standing and rejected the one that the d pla asserted he then said by the way there's another wrinkle there's a standing argument the plaintiffs and mickey have have proposed but we don't have to get to that because that's not the theory of the plaintiff's case and that goes whether bryant doesn't point against your position in essence but we're the masters of the complaint we get to decide this why or why does that not equality right because there was a there was a specific allegation  brian from plaint this is allegation fifteen that said as a result the result of stature a violation plaintiffs and others similarly situated lost the right to control their biometric a s information that was the specific allegation of injury in the bryant complaint and that fully supported the fifteen b analysis that the court employed to say that it was standing because and what the court said was the right to control the biometric information had been impeded had been impaired that hasn't happened here there is no what there is will happen here is there's a somebody else who's profiting from your client's  permission yes that's the statutory violation but the but the rights the rights to the the rights of privacy the rights to control it are not implicated in illinois because there is never any disclosure in illinois and that's that's how the complaint is drafted that's why the class is defined that way that's why the complaint says there is no just there's been no disclosure not only was there no disclosure there wasn't even noticed that what they knew nobody even knew that this database existed during the class period there was no disclosure there was no notice and there was no invasion there was no harm to any to any rights of involving biometric data it is true that there's a statutory violation but what what larkin says one of the cases that the five or six cases that were decided in december of two thousand and twenty say is any statutory violation must be supported by additional allegations of injury what's what's happening here is the that the defendant is trying to rewrite history moment i think we have your position thank you i hear any further questions all right thank you very much mr barl particularized injury the argument the plaintiff is making is that because all that has happened is that the st of that biometric information has been harvested has been sold has been part of a commercial transaction as judge hamilton you put it that there are four there is no concrete in particular ised injury and respectful mr burr low how does this fit in with the definitions in the statute the statute excludes photographs from the definition of the term biometric identifier and then it says that biometric information does not include information derived from items or procedures excluded so doesn't that force this line on the plaintiffs this is a welcome addition scraped from the photographs and the photographs are not biometric information your honor i think that that may be that they're forced to do it by the statute but it still means that there is a concrete and particularized harm that has existed here because of the way the statute has compelled them to plead their claim what i would also add here is that the plaintiff here has said that we have no personal interest in having our information sold or at least the fruits of that information sold respectfully i would suggest that in light of the court's decision particularly in fox which was not part of this consent regime that the plaintiffs really built their case around that the sale is just like the wrongful collection of the information the wrongful were tension of that information and it is difficult to see how the analysis of that information for profit if those other two things are very personal if that last category of claim is not thank you mr burr well the case is taken under advisement and the court will be in recess