Clearview Sued By Vermont Attorney General For Violating The State's Privacy Laws

from the engineering-its-own-downfall dept

For the second time in a little over 30 days, odious facial recognition tech supplier Clearview is being sued. Unlike the first lawsuit, which is a proposed class action over violations of Illinois' biometric privacy law, this one [PDF] is being filed by a government agency. The Attorney General of Vermont is seeking to permanently ban Clearview from collecting info about state residents or sell access to the info it's already collected.

The complaint alleges that Clearview AI has been collecting photos of Vermonters available on the internet – called “screen scraping” – and using artificial intelligence to “map” individual’s faces. Private businesses, individuals, and law enforcement use this data via an app that allows a user to identify a person within seconds using only a photograph. No Vermont state or local law enforcement agencies have used the app. Clearview AI collects the facial recognition data of Vermont children, as well as adults, without their notice or consent.

The complaint also alleges that Clearview AI violated Vermont’s new Data Broker Law by fraudulently acquiring data through its use of screen scraping.

The method used to compile Clearview's database of three billion images is going to make it very difficult for the company to dodge lawsuits like these. Scraping sites may be mostly legal, but Clearview doesn't provide any way to opt out of this collection. Scraping images from sites where users have granted the platform permission to publish their information doesn't mean the TOS agreement the user made with the platform magically migrates with the scraped data.

From the lawsuit:

[T]he term "publicly available" does not have any meaning in the manner used by Clearview, as even though a photograph is being displayed on a certain social media website, it is being displayed subject to all of the rights and agreements associated with the website, the law, and reasonable expectations. One of those expectations was not that someone would amass an enormous facial-recognition-fueled surveillance database, as the idea that this would be, permitted in the United States was, until recently, unthinkable.

Thus, when an individual uploads a photograph to Facebook for "public" viewing, they consent to a human being looking at the photograph on Facebook. They are not consenting to the mass collection of those photographs by an automated process that will then put those photographs into a facial recognition database. Such a use violates the terms under which the consumer uploaded the photograph, which the consumer reasonably expects will be enforced.

Clearview's database compilation relies on its violating website terms of service en masse. Sites have begun pushing back but at this point their legal options are limited to being angry about it. But some state-by-state litigation may actually have an effect, since it seems almost impossible for Clearview to comply with privacy laws governing the collection of biometric data. Selling access to the data makes it even more difficult, since there's no way for those packaged up in Clearview's database to request removal or limit access to the scraped data.

It's too late for Clearview to salvage its reputation by claiming it controls access carefully and sells only to law enforcement agencies to assist in solving crimes. That cat walked right out of the bag and over to BuzzFeed, which reported Clearview is selling its tech to private companies and governments engaged in ongoing human rights abuses. Claiming to serve a higher purpose while behaving like a bottom feeder doesn't do anything for anyone, least of all a company that hoped it would fly under the radar long enough to capitalize fully on a bunch of free photos it found scattered around the internet.

Filed Under: data broker law, facial recognition, privacy, privacy law, vermont
Companies: clearview, clearview ai


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  • identicon
    Anonymous Coward, 11 Mar 2020 @ 1:40pm

    [T]he term "publicly available" does not have any meaning in the manner used by Clearview, as even though a photograph is being displayed on a certain social media website, it is being displayed subject to all of the rights and agreements associated with the website, the law, and reasonable expectations. One of those expectations was not that someone would amass an enormous facial-recognition-fueled surveillance database, as the idea that this would be, permitted in the United States was, until recently, unthinkable.

    Thus, when an individual uploads a photograph to Facebook for "public" viewing, they consent to a human being looking at the photograph on Facebook. They are not consenting to the mass collection of those photographs by an automated process that will then put those photographs into a facial recognition database. Such a use violates the terms under which the consumer uploaded the photograph, which the consumer reasonably expects will be enforced.

    No. Just no. There is so much wrong with this it's hard to know where to begin, so let's just begin with the basics:

    That which is done in public has no expectation of privacy. None. Zero. The same principle that says that yes, you can record police in their interactions with the public, whether they want you to or not, also says that what you post in public can be used in ways that you don't like. If you have a problem with that, too bad; don't post anything in a public place if you have any problem with it ending up in the hands of people who might not have your best interests at heart.

    If this gives the ruling that these Luddites are seeking, the insanely abusable precedent it sets would create a horrific chilling effect on future innovation. That's the sort of thing that Techdirt usually gets right, and it's a bit disheartening to see this article coming down on the wrong side of it this time.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2020 @ 1:51pm

      Re:

      That which is done in public has no expectation of privacy.

      Would the police feel the same way about their information being used in a similar manner?

      Let's say I correlate an online database of police both in uniform along with their personal pictures, such that they are easy to identify when not on duty. Just stuff they post in public, for public consumption.

      Do you think this would hold water or would their unions empty their bowels and make the same argument? I'm not saying it shouldn't - but I'd expect them to lose their collective minds and cry about safety.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Mar 2020 @ 2:22pm

        Re: Re:

        Would the police feel the same way about their information being used in a similar manner?

        You know the answer. Forget about the off-duty data, they've freaked out about people posting the locations of on-duty officers (such as those operating speed traps).

        reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 11 Mar 2020 @ 3:12pm

      Re:

      That which is done in public has no expectation of privacy. None. Zero.

      True. But then, scraping images together with the accompanying personal information by breaking the TOS of a privately owned site actually mean they violated someones rights - whether it's privacy related or other doesn't really matter.

      Also, equating a privately owned site to a public space available to the public only after agreeing to a TOS doesn't really fly.

      reply to this | link to this | view in chronology ]

    • icon
      justok (profile), 12 Mar 2020 @ 2:41am

      Re:

      Advances in technology can certainly change "expectations". Someone going around and demanding each person's name and ID that's in public would probably not be acceptable, but a tiny camera that collects that info without consent is okay?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2020 @ 2:20pm

    Thus, when an individual uploads a photograph to Facebook for "public" viewing, they consent to a human being looking at the photograph on Facebook. They are not consenting to the mass collection of those photographs by an automated process that will then put those photographs into a facial recognition database. Such a use violates the terms under which the consumer uploaded the photograph, which the consumer reasonably expects will be enforced.

    Isn't that exactly what Facebook does when someone uploads an image? And, presumably, what they claim in their terms of service will be done?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2020 @ 3:18pm

    Hmmm. At least Vermont doesn't seem confused about CDA 230.

    As certain other government agencies are.

    If we dig far enough, maybe we will find the bar

    reply to this | link to this | view in chronology ]

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