Clearview Hires Prominent First Amendment Lawyer To Argue For Its Right To Sell Scraped Data To Cops

from the weird-but-possibly-consitutional dept

Clearview -- the facial recognition company selling law enforcement agencies (and others) access to billions of photos and personal info scraped from the web -- is facing lawsuits over its business model, which appears to violate some states' data privacy laws. It's also been hit with cease-and-desist requests from a number of companies whose data has been scraped.

What was once a toy for billionaires has become a toy for cops, who are encouraged to test out the software by running searches on friends and family members. Clearview claims it's been instrumental in fighting crime, but evidence of this remains nonexistent.

Now, the company appears to be going on the offensive. Clearview has already argued -- through its legal rep, Tor Ekelund -- that Section 230 of the CDA insulates it against lawsuits over its use of third-party content. It's a novel argument, considering Clearview isn't actually the third party. That would be the original hosts of the content. Clearview is something else and it's not clear Section 230 applies to these lawsuits, which are about what Clearview does with the content, rather than over the content itself.

The New York Times reports Clearview has hired a prominent First Amendment lawyer -- one that has defended the paper in the past -- to make the argument that selling government agencies data scraped from the web is protected speech.

Floyd Abrams, one of the most prominent First Amendment lawyers in the country, has a new client: the facial recognition company Clearview AI.


“Floyd Abrams is without peer as the nation’s pre-eminent First Amendment attorney, and it is clear that there are potentially groundbreaking First Amendment issues relating to the cases involving Clearview AI,” said Lisa Linden, a spokeswoman for the company.

Abrams is the lawyer who gave us the Citizens United decision -- the one that allows companies and other "non-persons" to express their political beliefs through unrestricted campaign donations. If the arguments fall along these lines, Abrams will be claiming that Clearview has the First Amendment right to "talk" about other people to government agencies and private customers. If people want to talk about themselves on the open web, Clearview can't be prevented from "discussing" what it's observed with anyone who asks questions about who these people are. Of course, Abrams was also a lawyer for Hollywood who insisted that copyright being used to take down websites, while possibly censoring speech, wasn't really a 1st Amendment concern, which has always raised questions about how committed he is to the 1st Amendment as opposed to just supporting the interests of his clients.

Abrams was unaware of Clearview before being asked to represent it. The Times notes the lawyer doesn't even own a smartphone. But he's willing to push a First Amendment argument that roughly aligns with those made by other law enforcement tech companies: that collecting data en masse from public places and selling access to this data to the government is protected speech.

Mr. Abrams said that in his view, while the technology involved was novel, the premise of the cases was a company’s right to create and disseminate information.

This may be protected under the First Amendment, but it's not all that useful to its Section 230 arguments. The lawsuits it's facing deal with what Clearview does with the content it scrapes, not the content itself, so the Section 230 argument seems pointless. The First Amendment question is far more interesting. And, as odious as the company is, limiting its right to gather and disseminate data by trimming back the First Amendment would likely result in a lot of unpleasant collateral damage.

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Filed Under: 1st amendment, facial recognition, floyd abrams, free speech, privacy
Companies: clearview, clearview ai

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  1. icon
    Tanner Andrews (profile), 16 Aug 2020 @ 12:33pm

    supporting the interest of his clients

    raised questions about how committed he is to the 1st Amendment as opposed to just supporting the interests of his clients

    Actually, that is correct for any lawyer. We do not impute to an attorney the views of his client, which may indeed be anathema to the attorney.

    Perhaps the easiest example is National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), wherein free-speech attorneys argued in favor of free speech for a group which, if successful in its goals, would have eliminated free speech for pretty much anyone.

    Many attorneys wind up with clients whose views they would not endorse, but whose need for counsel is still present. Need I point out that roughly half the people charged with crimes and going to trial are guilty of their crimes? We should not impute a preference for outlawry to the attorneys handling those cases, even in the cases where the clients are guilty but insisting that the government be required to make a case.

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