Clearview’s Face Surveillance Still Has No First Amendment Defense

Clearview AI extracts faceprints from billions of people, without their consent, and uses these faceprints to help police identify suspects. This does grave harm to privacy, free speech, information security, and racial justice. It also violates the Illinois Biometric Information Privacy Act (BIPA), which prohibits a company from collecting a person’s biometric information without first obtaining their opt-in consent.

Clearview now faces many BIPA lawsuits. One was brought by the ACLU and ACLU of Illinois in state court. Many others were filed against the company in federal courts across the country, and then consolidated into one federal courtroom in Chicago. In both Illinois and federal court, Clearview argues that the First Amendment bars these BIPA claims.

We disagree. Last week, we filed an amicus brief in the federal case, arguing that applying BIPA to Clearview’s faceprinting does not offend the First Amendment. Last fall, we filed a similar amicus brief in the Illinois state court case.

EFF has a longstanding commitment to protecting both speech and privacy at the digital frontier, and these cases bring these values into tension. Faceprinting raises some First Amendment interests, because it is collection and creation of information for purposes of later expressing information. However, as practiced by Clearview, this faceprinting does not enjoy the highest level of First Amendment protection, because it does not concern speech on a public matter, and the company’s interests are solely economic. Under the correct First Amendment test, Clearview may not ignore BIPA, because there is a close fit between BIPA’s goals (protecting privacy, speech, and information security) and its means (requiring opt-in consent).

A growing number of law enforcement agencies have used face surveillance to target Black Lives Matter protesters, including the U.S. Park Police, the U.S. Postal Inspection Service, and local police in Boca Raton, Broward County, Fort Lauderdale, Miami, New York City, and Pittsburgh. So Clearview is not the only party whose First Amendment interests are implicated by these BIPA enforcement lawsuits.

For a more complete explanation of EFF’s First Amendment arguments, check out this blog post, or our two briefs.

You might also be interested in the First Amendment arguments, recently filed in the federal lawsuit against Clearview, from the plaintiffs, the ACLU and ACLU of Illinois amici, and the Georgetown Law Center on Privacy & Technology amicus.