What Comes Next for Clearview AI After the Recent Ban by the Canadian Government - Fordham Intellectual Property, Media & Entertainment Law Journal
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What Comes Next for Clearview AI After the Recent Ban by the Canadian Government

What Comes Next for Clearview AI After the Recent Ban by the Canadian Government

What was once a gimmick in sci-fi movies, facial recognition software is now used by over 2,400 U.S. law enforcement agencies.1 Clearview AI is a research tool used by law enforcement agencies to identify perpetrators of crimes and their victims.2 The facial recognition app uses publicly available information to create a database of photographs.3 A police officer is then able to upload a photo of an unidentified person, and Clearview AI will return public photos of that individual along with links to where those photos appeared.4 Officers have used this application to solve cases ranging from shoplifting to murder and sexual exploitation cases. 5

While law enforcement agencies support the use of this software, the small company has faced immense backlash since its release.6 In the United States, Clearview was sued in Illinois for violating the state’s Biometric Information Privacy Act, on the basis of a consent requirement before using the images of citizens faces.7 Also, the application has been banned for use in the San Francisco police department.8 Most recently, in February 2021 the Office of the Privacy Commissioner of Canada ruled that Clearview AI violated the terms of the Personal Information Protection and Electronic Documents Act (PIPEDA).9 The PIPEDA has an exception for publicly available information.10 Clearview AI contends that all the information which they scrape for use in their database is publicly available.11 However, the commission held that Clearview AI’s use of the information was not intended by the public and could create risk of significant harm to the individuals.12 Therefore, Clearview AI cannot fall under the publicly available exception of the act.13

As a result of this ruling, the Canadian commission has ordered Clearview AI to stop scraping Canadian citizens information and to delete the information which they have already collected.14 This order is not a simple task. As Clearview AI CEO Hoan Ton-That has pointed out, it is not possible to tell someone’s nationality from their photograph alone.15 After the suit in Illinois, Clearview AI allowed Illinois citizens to opt out of the database by providing the company with identifying information so that their photographs could be located and deleted.16 The Canadian Commissioner, however, does not believe that solution effective.17 He points out the irony of the remedy that citizens who wish to opt out from this information collection database must provide identifying information about themselves first.18 The method by which Clearview AI handles this conundrum may set the tone for these types of orders in the future.

Clearview AI is has class action lawsuits pending against it from California and New York, as well as an open letter from the Senator of Massachusetts demanding more information as to the limits and uses of the software.19 Furthermore, Clearview AI has received cease and desist letters from major tech companies including: Facebook, LinkedIn, Twitter, Google, and Apple.20 The resolution of these lawsuits and inquiries will serve as a defining moment for the future of the use of technology in law enforcement agencies. The world is in a moment of an unprecedented amount of information at people’s disposal, and Clearview AI is the first software of many which will challenge traditional notions of freedom, public, and security. Clearview AI’s handling of these suits can serve as a template for many years to come.

  1. Kashmir Hill, Clearview AI’s Facial Recognition App Called Illegal in Canada, N.Y. Times (Feb. 3, 2021), https://www.nytimes.com/2021/02/03/technology/clearview-ai-illegal-canada.html [https://perma.cc/ZPZ5-EG96].

  2. Clearview AI, https://clearview.ai/ (last visited Mar. 6, 2021) [https://perma.cc/3SPE-WQYE].

  3. Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times, https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html (last updated Jan. 31, 2021) [https://perma.cc/P7VY-AUJA].

  4. Id.

  5. Id.

  6. Phil Siarri, The ‘Facial Recognition Backlash’ is Moving to Canada, Medium (May 30, 2019), https://medium.com/artificial-intelligence-network/the-facial-recognition-backlash-is-moving-to-canada-7ca4bbc747c7 [https://perma.cc/94AC-6A4N].

  7. Hill, supra note 1.

  8. Siarri, supra note 6.

  9. See Hill, supra note 1; PIPEDA in Brief , O.P.C., https://www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/the-personal-information-protection-and-electronic-documents-act-pipeda/pipeda_brief/ (last visited Mar. 6, 2021) [https://perma.cc/S67B-8CVT].

  10. Hill, supra note 1.

  11. Id.

  12. Id.

  13. See id.

  14. Id.

  15. Id.

  16. Id.

  17. Id.

  18. Id.

  19. Molly Stubbs, Clearview AI Faces Fourth Lawsuit Alleging Biometric Privacy Violations, Expert Inst.,https://www.expertinstitute.com/resources/insights/clearview-ai-faces-fourth-lawsuit-alleging-biometric-privacy-violations/ (last updated June 25, 2020) [https://perma.cc/V8W9-T3DX].

  20. Id.

Elad Jerusalem

Elad Jerusalem 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. He holds a B.S. in Business & Management from Yeshiva University Sy Syms School of Business.