Liberties Reporting on First Amendment freedoms

Mining your photos

First Amendment | Facial recognition company claims constitutional right to sell data
by Steve West
Posted 8/18/20, 12:34 pm

A leading developer of facial recognition software is making a case that it has a First Amendment right to use and sell any and all photos publicly available online.

The company, Clearview AI, last week hired leading First Amendment expert Floyd Abrams to defend it from a spate of lawsuits. Civil libertarians, states, and even social media companies allege that Clearview violates privacy laws and social media use agreements by scraping publicly available photos from the internet. Company CEO Hoan Ton-That told CBS News earlier this year that Clearview had a constitutional right to access publicly available information.

In a recent interview with The New York Times, Abrams said the litigation “has the potential of leading to a major decision about the interrelationship between privacy claims and First Amendment defenses in the 21st century.”

Mining visual images is profitable and useful. Clearview has sold access to its database to more than 600 law enforcement agencies that use it to identify criminal suspects and track missing and trafficked children. But critics say malicious users could exploit the data to target disfavored groups.

No federal law addresses facial recognition technology, but several states—including California, Illinois, and Washington—regulate it. Critics have touted the Washington state law, enacted in March, as a model for comprehensive legislation. It requires government agencies to obtain a warrant to run facial recognition scans.

Courts, not Congress, might be the first to address the controversy surrounding the technology. Jake Laperruque, senior counsel at the Project on Government Oversight’s Constitution Project, doesn’t buy Clearview’s constitutional argument. “Using people’s data is not expressive, and even if it is, courts have long treated commercial speech differently than other types of speech,” he said, noting that studies have demonstrated inaccuracies and bias in facial recognition data.

But it’s difficult to argue with the technology’s usefulness in law enforcement. Terry Beckstrom, a former federal officer who trains law enforcement agencies and corporations, points to rapid improvements in the technology that make it less prone to error or bias. He said the technology must be used alongside traditional law enforcement tools but emphasized its importance in apprehending dangerous criminals or locating missing and abducted children: “If the public knew how this technology was used and the number of bad guys picked up off the street because of this, they would be fully behind it.”

Some think government and law enforcement agencies should hit the brakes on using facial recognition and allow more time to work through the privacy concerns. Jason Thacker, chairman of research in technology ethics at The Ethics and Religious Liberty Commission of the Southern Baptist Convention, argues for slowing down to better understand and wisely use these new tools: “Part of loving our neighbor as ourselves is realizing that every human being is made in God’s image. We need to use these tools to uplift and honor that image rather than dehumanize or oppress.”

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Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.

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