Facial-Recognition Company Says Injunction Would Violate First Amendment

Facial-recognition outfit Clearview AI is telling a federal judge that an injunction requiring the company to stop collecting and selling biometric data about Illinois residents would violate free speech principles.

“The preliminary injunction sought in this case is flatly at odds with the First Amendment,” Clearview writes in papers filed Sunday with U.S. District Court Judge Sharon Johnson Coleman in Chicago.

“Computer language is the language of the Internet, and it is protected by the First Amendment,” Clearview writes.

The company adds that its code “matches information on the public internet to a specific user search query by running algorithms on public data," and "is fully protected in doing so."

Clearview's newest argument comes in response to a request made by Illinois resident David Mutnick, who this April sought an injunction that would prohibit Clearview from collecting or disseminating biometric data about state residents. He also wants Clearview to be ordered to destroy data already collected from Illinois residents.

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Mutnick alleged in a class-action complaint filed earlier this year that Clearview violates the Illinois Biometric Information Privacy Act, which requires companies to obtain consumers' written consent before compiling scans of their facial geometry.

Mutnick filed suit several days after The New York Times reported that Clearview scraped billions of photos from Twitter, Facebook and other companies, used technology to create a faceprint database, and then sold that database to police departments across the country.

BuzzFeed subsequently reported that Clearview's clients also included private entities, including Macy’s, and a conservative think tank.

Since news about the facial-recognition company came to light, it has faced criticism by lawmakers, and been told by Twitter, Google, Facebook and other companies to stop scraping their sites for photos. 

Clearview also faces several other federal class-action complaints, which were filed separately but may be consolidated in the future. (Clearview is arguing separately that the litigation in Illinois should be transferred to New York, where some of the other lawsuits were brought.)

In May, Clearview argued that Mutnick's request for an injunction was moot because the company had already taken the steps he requested. Clearview said at the time that it had configured its software to avoid collecting “facial vectors” from images with metadata associating them with Illinois, or that were stored on servers with an Illinois IP address.

The company also argued that because it's based in New York, it isn't subject to the Illinois biometric privacy law.

On Sunday, Clearview raised additional objections to the request for an injunction, including that it would violate the First Amendment.

The company pointed to a Supreme Court decision striking down a Vermont law that prevented pharmacies from selling marketers records of prescriptions written by doctors. Vermont had passed the law in order to protect the privacy of doctors (patients' names were "anonymized" when the information was distributed), but the Supreme Court ruled that the law violated the First Amendment.

Clearview isn't the only one to argue that attempts to promote privacy violate the First Amendment.

Earlier this year, trade associations representing internet service providers sued to invalidate a Maine privacy law that prohibits broadband carriers from “using, disclosing, selling or permitting access to customers' personal information” without their explicit consent.

The broadband industry said the law unconstitutionally restricts their right to access information, and wrongly subjects internet service providers to tougher privacy standards than search engine companies, social networking platforms or other “edge” providers.

Last month, U.S. District Court Lance Walker in Bangor rejected the broadband industry's request to immediately strike down the law, but his ruling allows the trade groups to develop more evidence supporting their claim that the measure is unconstitutional.

2 comments about "Facial-Recognition Company Says Injunction Would Violate First Amendment".
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  1. John Grono from GAP Research, August 19, 2020 at 6 p.m.

    Surely if "Computer language is the language of the Internet, and it is protected by the First Amendment", then that protection is bound by that 'definition'.   Ergo, that implied protection would only relate to the 'computer language' itself, and be restricted to just computers, meaning that it could not be extended to other languages - i.e. human languages such as English.

  2. Paula Lynn from Who Else Unlimited, August 19, 2020 at 8:26 p.m.

    They must be looking in the mirror since they have this very backwards.

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