Commentary

Legal Woes Pile Up For Clearview

Problems are mounting for Clearview AI, the controversial start-up that reportedly sells a faceprint database to police departments.

On Wednesday, the company was hit with another federal class-action complaint -- the third in two weeks. This case, brought by Illinois resident Anthony Hall, alleges that Clearview is violating an Illinois biometric privacy law that prohibits companies from collecting scans of facial geometry without state residents' written consent.

This newest case joins two others -- a lawsuit filed Monday alleging that Clearview violates state laws in Virginia, and an earlier one centered on Illinois's biometric privacy law.

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Clearview came to public attention late last month, when The New York Times reported that the company scraped billions of photos from Twitter, Facebook and other companies, used technology to create a faceprint database, then sold that database to police departments across the country.

Since then, in addition to the lawsuits, New Jersey Attorney General Gurbir Grewal told state prosecutors to temporarily stop using the technology company's program, and tech companies -- including Google, Twitter and Facebook -- have demanded that Clearview stop scraping their sites.

Tech companies terms of service tend to prohibit the scraping of online data -- but it's unclear whether they can enforce that prohibition, given a recent court decision in a dispute between LinkedIn and analytics company hiQ.

LinkedIn attempted to use a federal anti-hacking law to prevent hiQ from accessing profile data, but the 9th Circuit Court of Appeals recently ruled against LinkedIn. The judges in that court ruled that scraping profile data probably didn't violate the anti-hacking law. LinkedIn has said it plans to ask the Supreme Court to review the case.

For his part, Clearview CEO Hoan Ton-That argues the company's service is protected by First Amendment principles. “The way we have built our system is to only take publicly available information and index it,” he told CBS.

It's also not clear whether Illinois residents will be able to proceed with claims that Clearview violated that state's biometric privacy law. Already, one federal judge in Illinois threw out a lawsuit accusing Google of violating that law. U.S. District Court Judge Edmond Chang ruled in that case that the Illinois residents who sued Google didn't suffer any concrete injury from the company's alleged faceprint practices, and therefore couldn't sue in federal court.

Chang ruled that faces are “public” information, and therefore Google couldn't be sued for allegedly using facial recognition technology on photos of people's faces.

“All that Google did was to create a face template based on otherwise public information -- plaintiffs’ faces,” Chang wrote.

But judges in California came to a different conclusion in a lawsuit accusing Facebook of violating the same law. There, the 9th Circuit Court of Appeals rejected Facebook's argument that no one was injured by the alleged use of facial recognition technology.

Facebook then unsuccessfully asked the Supreme Court to review that ruling. After being rebuffed, the company agreed to pay $550 million to settle the battle.

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