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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  • identicon
    Anonymous Coward, 14 Aug 2020 @ 1:56pm

    Clearview has been OFFENSIVE from the gitgo.

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

  • icon
    Upstream (profile), 14 Aug 2020 @ 2:35pm

    tldr; Clearview still sucks.

    What is legal (or Constitutionally permitted) and what is right, or moral, are often very different. This situation provides a good example. Several of the Amendments in the Bill of Rights are special cases of a more general right to privacy. That this more general right to privacy was not mentioned particularly in the Bill of Rights, or elsewhere in the Constitution, cannot be construed to mean that it does not exist.

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

    • icon
      Anonymous Anonymous Coward (profile), 14 Aug 2020 @ 3:42pm

      Re: tldr; Clearview still sucks.

      "Amendment 9 - Construction of Constitution

      "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

      This has been used to establish several rights not enumerated thought privacy in general is not on that list, so far, though privacy in a marriage is.

      Another issue is that the data belongs to whomever it describes and not Clearview. It is not like other third party data where by contractual arrangement data is created due to a transaction for a service being provided (which should be 4th Amendment protected but that is another issue, (then again why wouldn't the data Clearview has be 4th Amendment protected, at least where the governments purchases are concerned?)) whereas in these cases the data is either posted by the individual or someone they know (most likely) and is not the result of any transaction.

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

      • icon
        Upstream (profile), 14 Aug 2020 @ 3:58pm

        Re: Re: tldr; Clearview still sucks.

        Yes. While the Interstate Commerce clause has got to be the most expansively abused clause of the Constitution, the 9th Amendment has got to be one of the most aggressively ignored parts of the Constitution, although it is one of the most important and most broadly applicable.

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

  • identicon
    Anonymous Coward, 14 Aug 2020 @ 2:44pm

    HIPAA

    Sue them for every single violation of HIPAA that they enable by the release of personal information. They are trying to make money off of their databases but they do no work to verify that they are compliant in the use of the data they provide.

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

  • icon
    Bloof (profile), 14 Aug 2020 @ 3:04pm

    It's like the founding fathers said 'No man/corporation is truly free if they can't profit from selling personal data scraped by questionable means to people whose sole aim is to strip away the freedom of others.'

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

  • identicon
    Anonymous Coward, 14 Aug 2020 @ 3:11pm

    Remember: Clearview dropped out of the Canadian market because it realized it didn't have a legal leg to stand on. But it still holds all the data on Canadians. In order to get your data removed in Canada, you need to send them a copy of your driver's license or passport.

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

  • icon
    ECA (profile), 14 Aug 2020 @ 3:27pm

    Pictures??

    Lets look at our pictures and decide what they are getting..
    HOW to ID everyone in the pictures??
    Not easy if possible. Probably have a good chance on the Site creator. but the others, IF not named..?

    1 do Citizens have the same rights as Corps, with Posting Pictures for ANY USE. WHO owns the pic's after posting?

    If its Us/We...Then they have no rights. If its FB, and they didnt ask to USE FB PRODUCTS.. its FB problem.
    If FB dont fix it, the citizens can get upset... and LEAVE.

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

  • identicon
    Anonymous Coward, 14 Aug 2020 @ 5:27pm

    One is tempted to try to figure out how to poison the databases: find pictures of, say, FBI most wanted, photoschlep them into interesting backgrounds, and match them with public names and office addresses of public officials.

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

  • identicon
    Anonymous Coward, 14 Aug 2020 @ 6:37pm

    Re: Don't worry

    Spam, but also lol.

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

  • identicon
    Anonymous Coward, 14 Aug 2020 @ 7:31pm

    Ulterior motives?

    Is it possible that this lawyer is trying to bring Sec.230 into disrepute by associating it with a particularly abhorrent client and its unconscionable behavior?

    What's the LEGAL difference between Google-scraping and Clearvoyeur? I'm struggling to make a case that lawyers could understand (which limits the amount of reality involved.

    Google-scraping is legal, outside the People's National Socialist European Union.

    OK, I say Google-scraping is an enormous value to all of society. (That's a POLITICAL argument, not a legal one. And a NIetzchean, Bolshevik, Nazi or other sociopathic dictator would happily take the political position that Clearview performs the legitimate purpose of providing more power to the more powerful.)

    I say Google gives website owners full control of whether their sites are scraped. That's a MORAL argument, with no legal weight either inside the PNSEU (where "moral" has a bizarre definition) or out (where "moral" does not equal "legal", as has already been noted.) Has Clearview given Facebook control of site-scraping? Perhaps they have, and Facebook didn't opt-out. (In which case, voyeurism is safe and our only recourse is to abandon Facebook, as has already been noted. But Clearview is pulling from other sites also--with or without their knowledge? Traffic cameras, unsecured security videocamera for home or business--what else? And how to opt out?

    Google is not responsible for what its scrapers find (outside the Insane-Clown-Posse masquerading as a European Union), although it responds to legitimate (or non-obviously-illegitimate) takedown requests. But by some perverse accident of fate, the ICP doesn't differentiate between Google and Clearview--which says all that can be said about their concepts of legality and morality.

    If Clearview doesn't have a takedown procedure, then Sec. 230 doesn't apply. But if Clearview simply comes up with an unworkable procedure, then they would still be technically legal, although even more morally reprehensible (if that's possible.) Perhaps they could allow you to request that any specific datum be taken down, while not letting you see any of their data. Would that in fact be adequate under Sec. 230?

    Under EU law, each person would be allowed to see any data linked to himself. So Clearview would be flagrantly illegal under EU law. The EU logic is unrelated to either liberty or equity, and of course totally irrelevant to the laws of the U.S. or Canada. So that can't help us.

    What is needed is a clear legal distinction between search engines and spying.

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

  • icon
    Ehud Gavron (profile), 14 Aug 2020 @ 8:01pm

    Is Doxing Protected Speech?

    Is doxing protected speech? This abstract lays out some fundamental concepts that suggest that it ought to be criminal to "maliciously" dox someone. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5411&context=flr

    There's not much difference between people sharing information about where to find someone's name, address, etc. than sharing pictures of them in various locations. Sure, there's no expectation of privacy in public (just like there isn't in assessor tax records for who owns Officer Jim's house). There is, however, an expectation that the records will stay with the respective agency that should have them.

    So, Clearview, if doxing is ok, [and that's the same as sharing my picture walking out of the adult bookstore] how about we create a new website to list all your executives. Would you feel threatened? Would you call it "malicious".

    I find the sharing of my picture -- despite it being taken in public -- and put into a national (soon international) database to be compared and searched and indexed "malicious." There's nothing good about it.

    330,000,000 Americans don't need to be indexed in order to decrease crime by the few who commit it. Just remove the corrupt LEOs and those who support them. Crime will drop a bunch. I promise.

    Ehud

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

    • identicon
      Anonymous Coward, 15 Aug 2020 @ 3:47am

      Re: Is Doxing Protected Speech?

      remove the corrupt LEOs

      = remove all the LEOs

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

    • identicon
      Anonymous Coward, 15 Aug 2020 @ 9:42pm

      Re: Is Doxing Protected Speech?

      Removing corrupt LEOs and those who support them will leave America devoid of lawyers, judges, politicians and Law Enforcement to boot. That is the greatest idea I have ever heard!

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

  • icon
    iPaloosa (profile), 15 Aug 2020 @ 9:05am

    Looking at the other end of the transactions.

    Regardless of their alleged constitutional right to sell scraped data to cops, the police do not have a constitutional right to -buy- it.

    After all it’s not like the police -have- to pay for the data clearview has when they can just get a court order for it.

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

  • identicon
    TheDumberHalf, 15 Aug 2020 @ 2:04pm

    Personal Data perspective

    The personal data of a corporation is a "trade secret." Why are we treated differently - unless of course Citizens United is wrong?

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

  • identicon
    Abby Normal, 15 Aug 2020 @ 3:58pm

    Each of the pictures scraped by Clearview is protected by copyright. I license a social media platform to store and display my images but I haven’t made them public domain. Clearview and each of the agencies that access those images should have to pay for their infringements and be enjoined from further infringement. There should be class-action law suits which would bankrupt Clearview and its staff and the agencies that are using the infringing materials.

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

  • icon
    Ehud Gavron (profile), 15 Aug 2020 @ 4:39pm

    Go read TechDirt

    Each of the pictures scraped by Clearview is protected by copyright.

    No, it's not. Go read TechDirt. Search for "Naruto."

    I license a social media platform to store and display my images...

    What you license is not relevant. As to the images:
    If YOU took them yourself, YOU have the copyright. Automatically taken pictures don't qualify. Pictures taken by others and uploaded MAY have a copyright, but YOU don't have the copyright unless a) There is a copyright owner, and b)That copyright owner assigns ALL those rights to you. Go read TechDirt. Search for "Righthaven"

    ...but I haven’t made them public domain.
    That's not relevant either. Pictures can be used for many things without needing you to put them in the public domain. Go read TechDirt. Search for "Fair use" for one such example.

    Clearview and each of the agencies that access those images should have to pay for their infringements...
    What infringement? Go read the above cases.

    ...and be enjoined from further infringement.
    Orders of restraints and injunctions are NOT issued in cases where other solutions (such as monetary ones) exist. There's no "enjoining anyone" here. Go read TechDirt and search for "injunction".

    There should be class-action law suits which would bankrupt Clearview and its staff and the agencies that are using the infringing materials.

    There should be a knowledge of the laws before misportraying them. Class action lawsuits are formed by filing a suit and asking it be declared applicable to a class of people. Given the lack of anyone filing anything, let alone all the automatic pictures of people or those taken by LEOs and DMV/MVDs and other sources ... that's not going to happen either.

    Go google "UPL" or "Unlicensed Practice of Law" and why some people never make it to be a 1L.

    Ehud

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

  • icon
    Ehud Gavron (profile), 15 Aug 2020 @ 4:41pm

    Sloppy editing above ^^^

    Clearly screwed up on the quoted text. Mea culpa.
    E

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

  • 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.

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


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