The Electronic Frontier Foundation (EFF) has filed an amicus brief in the case of the ACLU v. Clearview AI to contest Clearview’s claim that an injunction would violate the company’s first amendment rights. The embattled facial recognition provider made that claim in papers filed in August, arguing that it has the right to collect and sell publicly available information. The ACLU lawsuit alleges that Clearview’s activities violate the Biometric Information Privacy Act in Illinois, which forces organizations to get explicit consent before collecting biometric data.
In its response, the EFF concedes that the first amendment does offer Clearview some protection, insofar as individuals and organizations are allowed to collect information for the purposes of speech. For example, an investigative reporter could make an audio recording and then share it while reporting on a matter of public interest. By the same token, Clearview’s primary faceprinting business is engaged in the collection of biometric data.
However, the EFF goes on to argue that first amendment protections do not apply to Clearview in this particular case. In doing so, it notes that the constitution offers greater protections to speech that addresses a public issue than speech that deals with an exclusively private matter, and that the first amendment does not give anyone the right to intrude on other people’s right to privacy when it comes to topics that are not of public interest.
The EFF believes that Clearview fails to meet both standards. The company collects biometric information solely for its own commercial gain, using it only to develop and sell a facial recognition system to third parties that are barred from redistributing that information. The faceprints are also collected indiscriminately and without consent, regardless of whether or not the people in the images are public figures, or are engaged in any publicly noteworthy activities.
In that regard, the brief claims that Clearview gathers information in a way that violates the rights of people in Illinois, who enjoy their own first amendment protections, including the right to confidentiality. With that in mind, the EFF argues that BIPA’s opt-in consent clause is a reasonable and appropriate way to enforce those rights and give people more control over their biometric data. It also implies that photos that appear online do not inherently belong to the public domain, as Clearview has suggested in its own filings.
November 6, 2020 – by Eric Weiss