Clearview's 'Faceprinting' Not Protected By First Amendment, Watchdogs Argue

An Illinois biometric privacy law that requires companies to obtain people's consent before collecting and storing their faceprints doesn't violate the First Amendment, digital rights group argued in court papers filed Friday.

“Illinois has substantial interests in protecting privacy, and the free speech and information security that depend on privacy, from the special hazards of faceprinting,” the Electronic Frontier Foundation writes in a friend-of-the-court brief filed Friday with U.S. District Court Judge Sharon Johnson in the Northern District of Illinois.

“Illinois has placed control over whether a business may extract a faceprint from a person exactly where it belongs: with that person,” the advocacy group adds.

The organization is weighing in on a lawsuit against Clearview AI for allegedly violating the Illinois privacy law.

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Clearview allegedly scraped billions of photos from Twitter, Facebook and other companies, used technology to create a faceprint database, then sold that database to police departments (as well as other agencies and private companies).

In May, the controversial facial recognition company urged Johnson to dismiss the case, arguing that it has a First Amendment right to collect and use public photographs that appear online.

The company added that restrictions on its use of biometric information hinders its right to gather, analyze and disseminate “truthful and constitutionally-protected information.”

The Electronic Frontier Foundation, which opposes Clearview's argument, contends in its papers that the First Amendment protects some forms of faceprinting, but not Clearview's.

Clearview's faceprinting is related solely to the company's economic interests, and Illinois has “substantial interests” in protecting residents from the application of facial recognition technology, the Electronic Frontier Foundation argues.

“Faceprinting poses a special threat to privacy. Individuals expose their faces to public view every time they go outside,” the watchdog writes. “Also, most people have photos accessible online — many of which they did not take or share themselves. Because of easy access to a person’s image, faceprinting allows for covert, remote, and mass capture and identification of images.”

The group also argues that Clearview's faceprint system itself poses a threat to the First Amendment right to “confidentially engage in expressive activity.”

“Faceprinting threatens the First Amendment activities that depend on privacy,” the digital liberties group writes. “Police use it to identify protesters ... Police can also use it to identify who attended a protest planning meeting, who visited an investigative reporter, who went to a controversial movie, and who distributed an unsigned pamphlet. This will chill speech.”

The Center on Privacy & Technology at Georgetown Law makes a similar argument in a separate friend-of-the-court brief.

“The ongoing partnership between Clearview AI and law enforcement exposes Illinois residents to the heightened threat of government surveillance and creates a chilling effect on those residents’ First Amendment activities,” the Georgetown organization writes. “A website user may well weigh the benefits of every movement on the Internet -- whether it be commenting on a political subject or endorsing a controversial public figure -- against the costs of Clearview AI’s data scraping and the government’s subsequent use of that data.”

The ACLU also weighed in separately against Clearview.

Clearview is expected to respond to the arguments by the end of the month.

Clearview is not the only company in litigation over the Illinois law. Others, including Amazon, Microsoft, and Google, are facing separate lawsuits for allegedly violating the state privacy law by compiling faceprint databases.

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