Clearview to rely on First Amendment to defend its face-tracking tech

The CEO has been banging this drum since the lawsuits starting rolling in.

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31 July 2020, Berlin: A surveillance camera is mounted on a mast. Photo: Alexandra Schuler/dpa (Photo by Alexandra Schuler/picture alliance via Getty Images)
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As lawsuits and cease-and-desist notices pile up on Clearview AI’s doorstep, the company’s legal strategy is clarifying, and it’s all about First Amendment rights. Clearview has hired a longstanding First Amendment lawyer, Floyd Abrams, to defend the company against claims that its technology violates privacy and safety laws. And there are a lot of claims.

Clearview AI is facing lawsuits in Illinois, California, Virginia and New York, though most of these charges have been transferred to New York’s Southern District, where they’ll be heard by Judge Colleen McMahon. Additionally, the American Civil Liberties Union is suing Clearview in Illinois for violating the state’s Biometric Information Privacy Act, which prohibits the corporate collection of faceprints without residents’ knowledge or consent. Google, YouTube and Twitter have sent cease-and-desist letters to Clearview, in an attempt to stop it from scraping photos on their services. Australia and the UK are also running a joint investigation into the company.

Clearview operates by comparing images of a person’s face from, say, a security camera, to an existing database of 3 billion face pictures, and noting potential matches. Clearview built this database by scraping images from social media sites, including Facebook, Instagram, Twitter, Venmo and LinkedIn — and that’s where the lawsuits come in.

Clearview has been selling its services to law enforcement agencies including the FBI and DHS in the United States, and the Metropolitan Police Department in London.

CEO Hoan Ton-That has been using the First Amendment to defend Clearview’s photo-scraping algorithm since it became mainstream knowledge in January. In an interview with CBS on February 5th, Ton-That said the company uses public information to create its database, making the practice fair game under the First Amendment.

“The way we have built our system is to only take publicly available information and index it that way," he said. "You have to remember that this is only used for investigations after the fact. This is not a 24/7 surveillance system."

This argument forms the foundation of Clearview’s legal defense as it moves forward with Abrams, who has a long history arguing First Amendment cases. Abrams represented The New York Times in 1971 in the Pentagon Papers lawsuit, where he successfully argued for the paper’s right to publish classified documents. More recently, Abrams has argued for the protection of corporate free-speech rights, and he worked on the Citizens United case. When the Supreme Court ruled on it in 2010, Citizens United drastically changed the political landscape in the US by removing restrictions on how much companies and other large groups can spend on political ads.

Speaking to NYT, Abrams said privacy is extremely important, but, “where there is a direct clash between privacy claims and well-established First Amendment norms, what would otherwise be appropriate manners of protecting privacy have to give way before the constitutional limitations imposed by the First Amendment.”

The ACLU and other equality groups argue that, unchecked, Clearview represents an inherent risk to privacy and encourages a police state that will harm marginalized people the most.

“For many Latinas and survivors, this technology isn’t just unnerving, it’s dangerous, even life-threatening,” said Linda Xóchitl Tortolero, president and CEO of Mujeres Latinas en Acción, one of the groups suing Clearview alongside the ACLU. “It gives free rein to stalkers and abusive ex-partners, predatory companies, and ICE agents to track and target us. This company has no business exploiting Illinoisans’ sensitive biometric information without our knowledge and consent.”

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