By: Meghan Chilappa
In January 2020, a little-known app called Clearview AI suddenly became infamous. The app scrapes – or pulls an image’s URL – from public images online, including from social media websites like Facebook and YouTube. The company collects these images for its database, which contains over 3 billion images. Clearview AI employs facial recognition technology (FRT) on these images, which is used by law enforcement agencies around the country as well as private companies to identify individuals based on their scraped photos.
It has been a little over a year since The New York Times published its blockbuster report on Clearview AI. The company is facing litigation, investigations, and backlash not just from the United States but around the world. In response, New Jersey banned the app from use by law enforcement. This month, the Canadian Privacy Commissioner declared that “what Clearview does is mass surveillance, and it is illegal.” Social media companies like YouTube and Venmo have sent Clearview AI cease-and-desist letters for violating their terms of service.
Clearview AI appears disinterested in consent, and the company is advancing a First Amendment argument for its FRT collection practices. Two lawsuits in Vermont and Illinois provide insight into the company’s legal strategy. In both of these cases, Clearview AI advanced the argument that its app functions like a search engine and that under the First Amendment, the company is allowed to collect and disseminate information that is publicly available online.
In Vermont, a trial court rejected the company’s motion to dismiss and permitted the State Attorney General’s lawsuit against Clearview AI to proceed. The Court did not expressly identify what category of speech Clearview’s functions fall under and essentially punted the First Amendment issue. The American Civil Liberties Union (ACLU) also initiated a case against Clearview AI under the Illinois Biometric Information Privacy Act (BIPA), the rare state privacy law which regulates the collection, use, and dissemination of biometric information. First Amendment experts remain skeptical that Clearview’s strategy will work and maintain that “it’s really frightening if we get into a world where someone can say, ‘the First Amendment allows me to violate everyone’s privacy.’”
Clearview AI’s lawyers – including Floyd Abrams, one of the foremost First Amendment scholars and litigators in the country – doubled-down after the January 6th insurrection and reasoned that these images are available for public download and are only used by law enforcement in “after-the-crime” scenarios. Clearview AI is a U.S.-based company, but countries worldwide are also conducting investigations into its practices.
In response to the Black Lives Matter protests last summer, large technology companies also paused or completely eradicated their FRT development after it became increasingly clear that the technology was used by law enforcement disproportionately against Black and Brown people. Clearview AI’s “mass surveillance” practices may also put pressure on Congress to enact a federal data privacy law or to issue a moratorium on police usage of FRT. In short, the rise of FRT impacts not only private companies like Clearview AI and Amazon (with its FRT software ‘Rekognition’) but also local law enforcement agencies, civil liberties organizations, and social media users across the globe.
 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.
 Natasha Lomas, Sweden data watchdog slaps police for unlawful use of Clearview AI, TechCrunch (Feb. 12, 2021, 5:21 AM), https://techcrunch.com/2021/02/12/swedens-data-watchdog-slaps-police-for-unlawful-use-of-clearview-ai/.
 Kashmir Hill, New Jersey Bars Police from Using Clearview Facial Recognition App, N.Y. Times (Jan. 24, 2020), https://www.nytimes.com/2020/01/24/technology/clearview-ai-new-jersey.html.
 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.
 Gisela Perez & Hilary Cook, Google, YouTube, Venmo and LinkedIn send cease-and-desist letters to facial recognition app that helps law enforcement, CBS News (Feb. 5, 2020, 6:25 AM), https://www.cbsnews.com/news/clearview-ai-google-youtube-send-cease-and-desist-letter-to-facial-recognition-app/.
 Jameel Jaffer & Ramya Krishnan, Clearview AI’s First Amendment Theory Threatens Privacy–and Free Speech, Too, Slate (Nov. 17, 2020, 1:21 PM), https://slate.com/technology/2020/11/clearview-ai-first-amendment-illinois-lawsuit.html.
 Vera Eidelman, Clearview’s Dangerous Misreading of the First Amendment Could Spell the End of Privacy Laws, ACLU (Jan. 7, 2021), https://www.aclu.org/news/privacy-technology/clearviews-dangerous-misreading-of-the-first-amendment-could-spell-the-end-of-privacy-laws/.
 State v. Clearview AI Inc., No. 226-3-20, 2020 VT 4.
 Andrew Philip, Recent Litigation Involving Clearview AI Leaves First Amendment Questions Unanswered, N.C. J.L. & Tech. Blog (Oct. 28, 2020), https://ncjolt.org/blogs/recent-litigation-involving-clearview-ai-leaves-first-amendment-questions-unanswered/.
 740 Ill. Comp. Stat. 14/5 (2018).
 Alfred Ng, Clearview AI says the First Amendment lets it scrape the internet. Lawyers disagree, Cnet (Feb. 6, 2020, 12:13 PM), https://www.cnet.com/news/clearview-says-first-amendment-lets-it-scrape-the-internet-lawyers-disagree/ (quoting Tiffany Li, a privacy lawyer); see also Jaffer & Krishnan, supra note 9.
 Floyd Abrams & Lee Wolosky, The Promise and Peril of Facial Recognition, Wall St. J. (Jan. 14, 2021), https://www.wsj.com/articles/the-promise-and-peril-of-facial-recognition-11610579445.
 Hill, supra note 7; see also Natasha Lomas, Sweden data watchdog slaps police for unlawful use of Clearview AI, TechCrunch (Feb. 12, 2021, 5:21 AM), https://techcrunch.com/2021/02/12/swedens-data-watchdog-slaps-police-for-unlawful-use-of-clearview-ai/.
 Jay Greene, Microsoft won’t sell police it’s facial-recognition technology, following similar moves by Amazon and IBM, Wash. Post (June 11, 2020, 2:30 PM), https://www.washingtonpost.com/technology/2020/06/11/microsoft-facial-recognition/.
 Ryan Mac, Caroline Haskins & Logan McDonald, Senators Are Probing Clearview AI On The Use Of Facial Recognition By Gulf States and International Markets, Buzzfeed (Mar. 4, 2020, 3:58 PM), https://www.buzzfeednews.com/article/ryanmac/senators-markey-wyden-clearview-ai-facial-recognition.