Facial Recognition’s Latest Use: Curbing Crime or Eroding Privacy? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Facial Recognition’s Latest Use: Curbing Crime or Eroding Privacy?

Facial Recognition’s Latest Use: Curbing Crime or Eroding Privacy?

At the start of 2020, a New York Times article drew considerable attention, claiming that there is a new company bound to “end privacy as we know it.”1 That company is Clearview AI, founded by Hoan Ton-That, which has spawned a powerful facial recognition app.2 The company has already amassed 3 billion images from “scraping”3 public profiles on the Internet, which has spiked concern from privacy advocates.4 Yet, the program was not employed for a malicious, privacy-eroding purpose; its main intention is to be licensed to an array of law enforcement agencies and assist in solving crimes.5

Ton-That claims that already 600 law enforcement agencies in the U.S. and Canada are using the app, and the software has also been licensed to certain companies for fraud investigation, namely, banks.6 Essentially, law enforcement agencies can consult Clearview’s database to identify criminals, and the police have already been successful in identifying perpetrators of shoplifts, frauds, murders, and sexual exploitation cases.7 Yet while the app seemingly has a social benefit, “[t]he tool could identify activists at a protest or an attractive stranger on the subway, revealing not just their names but where they lived, what they did and whom they knew.”8 In addition, the software’s accuracy rate is debatable and could return false matches or, at an extreme level, it could fall into the hands of more malicious actors.9

The Clearview website homepage notes that the company “does not and cannot search any private or protected info, including in your private social media accounts” and “is not a surveillance system and is not built like one.”10 However, Clearview retains all images it scrapes, regardless of whether the original posting was deleted.11 And to have your data deleted from its repository, the site asks you to provide a headshot and government-issued ID before your request can be processed.12

Since the New York Times article was published, an individual has filed a lawsuit in the Northern District of Illinois seeking damages and an injunction against Clearview for violating civil liberties and privacy laws.13 The individual is reportedly seeking class action status.14 In addition, social media giants such as Google, Twitter, Facebook have sent cease and desist letters to Clearview, alleging that the scraping violates their policies.15 Ton-That has responded that the First Amendment protects his right to scrape these platforms for public photos.16 In fact, he compared Clearview’s practices to those of Google, as a search engine “can pull in information from all different websites.”17 Nevertheless, Clearview “is not a public search engine and gathers data without people’s consent. . . .”18 But because this dispute has quickly unfolded in recent weeks, it will be a matter of time before telling whether privacy or the First Amendment comes out on top.

Perhaps a larger problem is that these tech giants have explicitly banned “scraping” of their platforms in their Terms of Service for quite some time but have not taken any enforcement action against this behavior until now. It is arguable that social media companies are complicit in third parties interfering with promises of privacy, until there is widespread public concern and social movements. Ultimately, as innovative technology companies like Clearview continue to take advantage of weak privacy policies, it might be time to encourage broader data protection and privacy reform.

  1. Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times (Jan. 18, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html?searchResultPosition=1 [https://perma.cc/6ZA4-5VB5].

  2. Id.

  3. “Data scraping is commonly defined as a system where a technology extracts data from a particular codebase or program. Data scraping provides results for a variety of uses and automates aspects of data aggregation.” Data Scraping, Techopedia, https://www.techopedia.com/definition/33132/data-scraping (last accessed Feb. 14, 2020) [https://perma.cc/2MAV-HJYD].

  4. Kate O’Flaherty, Clearview AI’s Database Has Amassed 3 Billion Photos. This Is How If You Want Yours Deleted, You Have To Opt Out, Forbes (Jan. 26, 2020, 9:29 AM), https://www.forbes.com/sites/kateoflahertyuk/2020/01/26/clearview-ais-database-has-amassed-3-billion-photos-this-is-how-if-you-want-yours-deleted-you-have-to-opt-out/#2887640060aa [https://perma.cc/QYX8-TWX9].

  5. Hill, supra footnote 1.

  6. Donie O’Sullivan, This man says he’s stockpiling billions of our photos, CNN Business (Feb. 10, 2020), https://www.cnn.com/2020/02/10/tech/clearview-ai-ceo-hoan-ton-that/index.html [https://perma.cc/TY26-TK35].

  7. Hill, supra footnote 1.

  8. Id.

  9. Alfred Ng & Steven Musil, Clearview AI hit with cease-and-desist from Google, Facebook over facial recognition collection, CNet (Feb. 5, 2020, 6:10 PM), https://www.cnet.com/news/clearview-ai-hit-with-cease-and-desist-from-google-over-facial-recognition-collection/ [https://perma.cc/7HT6-DKNE].

  10. Clearview AI, https://clearview.ai (last visited Feb. 7, 2020) [https://perma.cc/EB87-Y5WP].

  11. Ng & Musil, supra footnote 9.

  12. O’Flaherty, supra footnote 4.

  13. Corrine Reichert, Clearview AI sued over facial recognition privacy concerns, CNet (Jan. 24, 2020, 4:29 PM), https://www.cnet.com/news/clearview-ai-faces-lawsuit-following-facial-recognition-privacy-concerns/ [https://perma.cc/Z48A-9NF2].

  14. Id.

  15. Ng & Musil, supra footnote 9.

  16. Id.

  17. Id.

  18. Id.

Victoria Mobilio

Victoria Mobilio is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. She is also a member of Artist Representation Society and has participated in CLIP’s Privacy Educators Program. She holds a B.B.A. in Finance from Villanova University.