• by Wendy Davis  @wendyndavis, July 26, 2021

Some prominent First Amendment experts are siding with controversial facial recognition company Clearview AI in a privacy battle over its collection and sale of faceprint databases.

“In the United States, privacy laws cannot ban the collection, analysis, or subsequent disclosure of information that is already in public view without conflicting with the First Amendment,” Eugene Volokh, UCLA law professor and founder of the blog Volokh Conspiracy, writes in a friend-of-the-court brief filed Monday. “This logic carries over to information available on the public internet.”

Volokh, along with University of Arizona law professor Jane Bambauer and the First Amendment Clinic at Duke Law School, are urging U.S. District Court Judge Sharon Johnson in the Northern District of Illinois to dismiss a lawsuit alleging that Clearview violates the Illinois Biometric Information Privacy Act.

That law requires companies to obtain people's consent before collecting and storing scans of their facial geometry.

Tech companies including Facebook, Amazon and Microsoft have also been sued for allegedly violating that law. Both Amazon and Microsoft recently said in court papers they plan to argue their alleged faceprint-related activity is protected by the First Amendment. Facebook recently agreed to pay $650 million to resolve the claims.

Clearview was sued last year for allegedly violating the Illinois law by scraping billions of photos from Twitter, Facebook and other companies, using technology to create a faceprint database, and then selling its data to police departments (as well as other agencies and private companies).

In May, the company urged Johnson to dismiss the claims, arguing that it has a constitutional right to collect and use public photographs that appear online.

Volokh agrees, writing that the Illinois law conflicts with the First Amendment by restricting how companies can use information that's already viewable by the public.

“Clearview is not violating reasonable expectations of privacy because it built its database of faceprints from photographs that were publicly available on the Internet,” Volokh and the others write.

They add that privacy laws “are compatible with the First Amendment only if they narrowly target a particular risk to personal information.”

The Illinois law “has an unconstitutionally broad reach that extends well beyond the set of circumstances in which biometric identifiers could be regulated,” they contend.

Other outside groups including the ACLU, Electronic Frontier Foundation and Center on Privacy & Technology at Georgetown Law recently sided against Clearview.

The Electronic Frontier Foundation wrote in a friend-of-the-court brief that the First Amendment protects some forms of faceprinting, but not Clearview's.

“Illinois has substantial interests in protecting privacy, and the free speech and information security that depend on privacy, from the special hazards of faceprinting,” that organization argues.