Clearview AI Defends Facial Recognition App as Free Speech

Clearview AI sells access to billions of photos it scraped from the Internet to law enforcement agencies and corporations. A client can upload a photo or video image and the Clearview AI app creates a “faceprint” and finds photos of the person in its database. In response, California, Illinois, New York and Virginia filed lawsuits against the company, stating that collection of peoples’ photos without their consent is a violation of privacy laws. In the U.K., law enforcement lost a challenge to facial recognition laws.

The New York Times reports that Cahill Gordon & Reindel senior counsel Floyd Abrams, one of the top First Amendment lawyers in the U.S., is representing Clearview AI in a case that he said could “one day reach the Supreme Court … [due to] the underlying legal questions.” He argues that, “what the company has done is a form of speech, protected by the Constitution.”

The state lawsuits were filed after NYT revealed Clearview AI’s existence; most of the suits have “been transferred to New York’s Southern District, under Judge Colleen McMahon.” The company also faces a lawsuit from Vermont’s attorney general and “the American Civil Liberties Union in Illinois, where a statute forbids the corporate use of residents’ faceprints without explicit consent.”

Also working with Clearview AI are attorneys Tor Ekeland, known for representing hackers, and Jenner & Block’s Lee Wolosky. Clearview plans to “challenge the applicability of the Illinois law to a company based in New York.”

Abrams’ long career in defending free speech started with representing NYT in 1971 on the Pentagon Papers case; he has argued 13 cases before the Supreme Court. He recently worked on the Citizens United case, “in which the Supreme Court ruled a decade ago that the government can’t restrict how much companies, nonprofits and other associations spend on political ads.”

Abrams said the current case shows “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.”

Bloomberg reports that a London Court of Appeals determined that South Wales Police “breached human rights and data-protection laws when deploying facial recognition technology.”

The campaign group Liberty supported Ed Bridges’ claim that he was scanned on a street in 2017 and again at a protest in 2018. Liberty attorney Megan Goulding stated that, “the court has agreed that this dystopian surveillance tool violates our rights and threatens our liberties … facial recognition discriminates against people of color.”

The South Wales police force said it won’t challenge the ruling and “is now in discussions with the U.K. government’s Home Office about further adjustments that should be made to their policies.”