Lawsuit Challenges Clearview's Use of Scraped Social Media Images for Facial Recognition

Databases of involuntarily supplied identities make for a plug-and-play surveillance state.


Facial recognition technology is getting more sophisticated, more reliable, and more pervasive as the world eases its way toward becoming an all-encompassing surveillance state. That surveillance state doesn't even have to be built; it's increasingly ready for deployment as law enforcement agencies cut deals with private companies that have already assembled the tools and databases for use. As with cell phone tracking, that plug-and-play quality does an end-run around safeguards that, at least nominally, restrict government actors, and invites legal challenges based on civil liberties concerns.

"We're suing Clearview AI in California," Mijente, an immigrant rights group, announced March 9. "The facial recognition firm is dangerous. Its surveillance tool—used by 2,400+ policing agencies—chills free speech & endangers immigrants, protesters & communities of color. We won't be safe till it's gone."

Mijente joined with NorCal Resist and four individual activists in a lawsuit seeking "to enjoin Defendant Clearview AI, Inc. ('Clearview') from illegally acquiring, storing, and selling their likenesses, and the likenesses of millions of Californians, in its quest to create a cyber surveillance state."

"Clearview has built the most dangerous facial recognition database in the nation by illicitly collecting over three billion photographs of unsuspecting individuals," the plaintiffs add.

The lawsuit follows up on revelations from early last year that Clearview AI, which sells its facial recognition services to law enforcement agencies, populated its vast database by scraping images from social media services without the permission of either the posters or the hosting companies.

"Clearview AI, a tech startup, has created an app that enables law enforcement agencies to match photographs to its database of over 3 billion photos scraped from millions of public websites including Facebook, YouTube, Twitter, Instagram, and Venmo," Reason's Ron Bailey noted in January 2020. "For comparison, the FBI's photo database contains only 640 million images."

That presumptuous use of personal images blew new life into the vestigial privacy concerns of social media executives. Companies including Facebook, LinkedIn, Twitter, and YouTube demanded Clearview stop its invasive practices and delete the scraped images. So far, that hasn't happened.

Some government regulators also raised objections to the intrusive way the images were sourced. Clearview withdrew from the Canadian market after that country's privacy commissioner found that the company used personal photos without consent, in violation of the country's laws.

"It is completely unacceptable for millions of people who will never be implicated in any crime to find themselves continually in a police lineup," commented Daniel Therrien, Privacy Commissioner of Canada. Clearview's facial recognition tools had been in use by dozens of Canadian police agencies, including the Royal Canadian Mounted Police.

The Mijente/NorCal Resist lawsuit alleging the violation of Californians' privacy, in violation of state protections, follows on legal action in Illinois by the American Civil Liberties Union. That lawsuit alleges "violation of Illinois residents' privacy rights under the Illinois Biometric Information Privacy Act (BIPA)."

The controversy over facial recognition comes to a head as the technology matures and becomes more reliable and easier to use. China widely deploys the technology as part of its efforts to monitor and control its population and companies based there have become leaders in the field. Other countries have adopted China's facial recognition advances as well as its totalitarian interest in identifying and punishing anti-government protesters.

Even in the United States, it's become routine to scan travelers; millions of flyers were compared by Customs and Border Protection against databases last year. The COVID-19 pandemic has spurred plans for "touchless" biometric passports, incorporating facial recognition technology at checkpoints to identify travelers.

The pandemic has also offered an opportunity to refine the technology, so that it can more effectively identify subjects wearing masks, just based on the appearance of the eyes and nose. The Department of Homeland Security (DHS) is champing at the bit to deploy the new algorithms — initially for travelers, but ultimately for everybody who passes in front of an official camera.

"Without masks, median system performance demonstrated a ~93% identification rate, with the best-performing system correctly identifying individuals ~100% of the time," DHS boasted in January. "With masks, median system performance demonstrated a ~77% identification rate, with the best-performing system correctly identifying individuals ~96% of the time."

Having access to vast databases of faces — whether derived by the FBI from driver's license records or scraped by Clearview from social media — gives surveillance state efforts using this rapidly advancing technology the ability to compare images captured at checkpoints or from (less reliable) scans of street scenes against known identities.

The use by government agencies of social media images scraped by Clearview for facial recognition is reminiscent of their purchase of cell phone location data from marketing firms and telecommunications companies for tracking targeted individuals. In both cases, private firms compile information in ways that would raise eyebrows, or be explicitly forbidden, for government actors. In both cases, the over-clever end-run around civil liberties protections invites legal challenges.

"Our concern is that the Supreme Court rejected the Government's argument in Carpenter that [cell-site location information] is truly voluntarily provided to the phone carriers," the Treasury Inspector General for Tax Administration wrote last month of IRS use of cell phone location data purchased from private parties. "The Court's rationale was that phone users do not truly voluntarily agree to share the information given the necessity of phones in our society. Courts may apply similar logic to GPS data sold by marketers."

Plaintiffs in U.S. lawsuits, as well as regulators in Canada and elsewhere, say that similar concerns apply to facial recognition databases. People didn't post vacation photos so they could later be used by cops to identify suspects and scan crowd scenes. If the challenges prevail, they probably won't stop the advance of the surveillance state by themselves, but they may slow it down a bit.

NEXT: COVID-19 Spotlights the Problems With Health Care 'Certificates of Need'

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  1. Are civil liberties even real if all your private data is owned by a company willing to sell such data to a third party, including federal and state agencies? Sure, the government can’t put a GPS device on my car without a warrant but couldn’t the government just buy my location information from cell phone tower pings or credit card swipes? The Bank of America nearly fell over themselves when handing that data to the FBI to try and uncover who was involved with the January 6 riot.

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  2. Title says “Clearwater”, body of text says “Clearview”… And they hiring nincompoops from Canuckistanistanistanistanistan do do their proof-reading, their title-writing, or both?

    THIS is why Mamma needs to stay in Canuckistanistanistanistanistan! (Other than that, I’m a mostly-kinda-open-borders dude or dudette).

    1. Perhaps you should apply SQRLSY. Though we would likely get something like this:

      Lawsuit CHALLENGES!…Clearview’s watery view of the CLEARLY WATERY watered down … Use of Scraped, Scrappy, Crappy (requisite poop reference) UN-Social Socialistic Media Images for FULL FRONTAL Facial Recognition!!! Wear a new SUIT Mr. LAW…Social norms NORMALizzard peopled.

      Still needs an editor

      1. Bravo!!! It’s about time that someone FINALLY shows a TINY modicum of concern for us oppressed NORMALizzard peopled!!!

        (Amphibian people like Pepe the Frog have been squashing us under the Amphibiarchy for WAAAAY too long! POWER to the NORMALizzard peopled!!)

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      2. Hey, they corrected the title! Finally, SOME power has trickled down to the NORMALizzard peopled!

        1. Finally, SOME power has trickled down to the NORMALizzard peopled!

          Yes, but will the NORMALizzard peopled ever be able to get out from under the thumb of the CACCLs?

          1. CACLLs

            And CACLLs don’t keep anyone under their thumbs, although they do possess thumbs. They just whine a lot about how they are victimized by libruls, which justifies any asshole behavior they wish to engage in.

            1. Forgot to switch out the SQRSLY sock puppet, eh?

              1. Could be. Although the mere mention of the CACCLs acronym will summon the White Knight. It’s like throwing up the Bat Signal.
                She coined it, she owns it…

                1. The use of libruls gave it away, as did the dad-level comedy remark about thumbs.

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  3. As with cell phone tracking, that plug-and-play quality does an end-run around safeguards that, at least nominally, restrict government actors, and invites legal challenges based on civil liberties concerns.

    This is a ridiculous argument – these are private companies using public domain images. It’s no different than Amazon deciding which books it wants to sell or Twitter and Facebook deciding which people it wants to allow on its platform. Even if they make their decisions in collaboration with the government, there’s no civil rights violations, no “censorship”, if private companies do these things and you’re just silly for suggesting there’s something problematic with their actions.

    1. Is that an attempt at parody or sarcasm?

      If not, it’s appallingly ignorant. Among other errors, those are not in fact public domain images.

      1. Im sure thats debatable.
        Does reason have to pay a licensing fee whenever they link a tweet with an image?
        If I post a screencap of somebody’s post that contains an image, is that fair use?
        Is it illegal for me to keep a full or partial copy of images from another user’s social media profile?
        If not, can I use them for research?
        If so, does cancelling people based on screencaps of old posts become one of those things that the cops will selectively enforced based on the social dynamics of the region that employs them? (Like the project veritas guy vs sasha cohen or cop recording vs ag-gag)
        I would think I have some right to record anything that is presented in public, and profile pictures are most definitely presented in public.

        1. re: public domain, no it’s not debatable. Public Domain is an affirmative release. Under current law, all content is assumed copyrighted at publication (without need for registration) UNLESS it is affirmatively released or it was produced by an entity that’s not allowed to copyright.

          To your specific questions, no, reason does not have to pay a licensing fee when they screen-cap a tweet because that falls under the Fair Use rule. It’s still copyrighted material, though. Fair Use and Public Domain are very, very different concepts.

          If you steelman Jerryskids’ comment and assume he meant that the companies are making Fair Use (rather than public domain), it’s a closer question but probably still wrong. Those private companies would clearly fail at least one and maybe three of the four standard tests of Fair Use. And that’s before you get to the problem of use that violates the social media sites terms of service.

      2. btw, I think it was satire.

      3. And sorry for posting machine gun style, but I think if you genuinely believe that private companies can censor anyone they want, because theyre private, his argument would be consistent with the libertarian defense of facebook, youtube and the like.

        1. Well, I don’t know about being consistent with the libertarian defense of Facebook and Twitter and YouTube, but it sure as hell is consistent with Reasons defense of private companies being able to do what they want. (Except refuse to bake the cake, obviously.)

      4. Do I not have the right to see you if you come into my sight, or do I have to close my eyes when you’re around? If I see you, do I not have the right to remember what I see? If I have the right to remember, do I not have the right to use technology — whether a pencil and sketch pad or photography — to assist my memory?

        1. By focusing on the pictures, you are stopping well short of where the scenario turns problematic. It may be clearer if you work from a slightly different analogy?

          Do you have the right to read a book that I sell on the open market? Clearly yes.
          Do you have the right to take notes while reading to help your memory? Yes.
          Do you have the right to memorize passages? Also yes.
          Do you have the right to recite those passages to others? Maybe. The right to quote snippets at the water cooler? Sure. The right to recite the entire screenplay in front of a paying audience? Not so much.
          Can you claim Fair Use when your use directly contravenes the license you agreed to when you purchased the book? While the law is murky, in my opinion the normative answer should be clear – and no.

          Regardless of the above, does Clearview even count as a private entity or have its contracts made it a de facto agent of the government? If the latter, additional protections and restrictions kick in. For all their alleged monopolistic behavior, the most that is credibly said about Facebook, Google and Twitter is that they may be approaching the status of utilities, not that they have become agents of the government.

      5. Seems a lot like MUH PRIVATE PLATFORMZ! are still selling things that Libertarians had few qualms about for long after it has become an obvious issue.

  4. “[W]ho will never be implicated in any crime …..”

    What does it mean to be implicated in a crime? Increasingly, it means nothing more than the government taking an interest in a person, sometimes based on nothing more than physical presence in a particular location. Everyone that happened to be in Washington, D.C. on January 6, 2021 has, in a very real sense, been implicated in an “insurrection.” Anybody they interacted with, in any way that is traceable, is likewise “implicated.” As we learned from the NSA scandals, government surveillance reverberates like a wave in a pond. Regardless of where the stone falls, the entire pond is “implicated.”

    1. No filthy proles should be allowed to wander around our most majestic Capitol!

      1. Yeah, they just “wandered around”.

        1. Sip some monohydrogen dioxide.

        2. HO2

        3. “Yeah, they just “’wandered around.'”

          Of course not.

          Once the MAGA terrorists breached the Capitol grounds, they charged Officer Sicknick with fixed bayonets and pinned him to a wooden pallet like a doll on a dartboard. After immobilizing him, the MAGA terrorists took turns flinging heavy fire extinguishers at his head like they were at a recreational axe throwing competition. Fortunately, after the first few direct hits, Sicknick passed out. Still, the merciless terrorists kept throwing. And laughing. And howling at the sky. After an hour, what little was left of Sicknick’s head resembled fresh roadkill on a country road.

          Truly, truly horrible.

          1. Brian Sicknick’s death is just a big yuck-fest to Geiger.


            Actual quote from Geiger:

            “‘Officer Brian Sicknick is dead.’

            “So is Hitler. What’s your point?”

            1. To be fair, I actually think I got the details of murder of Officer Sicknick wrong this time.

              Another source I read (by an anonymous poster writing under the name Black Squire) actually makes it clear that the cruelty of the MAGA terrorists went far beyond what has been previously reported.

              Apparently, after obliterating Sicknick’s skull, those vicious trumpanzees actually collected pieces of his brain, worked them into meatballs, and served them to the National Guard troops that were bravely stationed to defend the Capitol. They disguised themselves as caterers, and serve our troops a bunch of brain meatballs in an aluminum tray … with red sauce!

              Can you believe how sick these people are? And, in fact, that is why there were wide reports of the troops getting food poisoning. Brain meatballs in a freezing parking garage!! I have no words. I can’t even.

    2. Are you now or have you ever been a member of the Republican party?

      1. Never! My family has been loyal to the Communist Party since my grandfather immigrated to America to subvert its capitalist institutions.

      2. Saying no to that question isn’t enough. If you haven’t been a lifelong Democrat, and your family hasn’t been fully Democrat for 3 generations, you’re a Republican.

        1. Actually you are an insurrectionist.

          1. I prefer the term insurgent, but in reality I’m just a curmudgeon.

    3. Everyone currently under arrest for participating in the January 6th storming of the Capitol at minimum trespassed unlawfully. No matter how hard it is for you to accept that your side was capable of rioting and attempting to overthrow democracy, it happened.

      1. They should have all been shot for being on public property.

        1. this. totes.

      2. “[O]verthrow democracy …”

        Nothing screams “Save Democracy!” like a few thousand armed troops and razor wire around a government building.

        Fuck off, SQRLSY.

        1. “Nothing screams ‘Save Democracy!’ like a few thousand armed troops and razor wire around a government building.”

          Gosh, did something happen that led to that overreaction.

          1. no, nothing happened for the fucking National Guard to point guns-in for two months. nothing.

          2. “Gosh, did something happen that led to that overreaction.”

            If only that fucking bitch of a wife hadn’t charred my bacon to a crisp maybe she wouldn’t be drinking meat through a straw right now. You know? Someone had to do something.

            On the other hand, I know we are not really talking about the same thing. A capitol police officer getting his skull ground into a fine powder by goose-stepping MAGA terrorists that used a fire extinguisher like a pestle and the steps of the Capitol as a mortar is beyond the pale. We deserve everything we get. Absolutely everything. We are all culpable, unworthy fiends.

            1. But it’s cool if he died as a result of being pepper sprayed in the face. Got it, Geiger.

              1. Oh, is that what happened? The MAGA terrorists melted Sicknick’s face with a flamethrower … er, I mean pepper spray?

    4. Being “implicated” in a crime means you are a “person of interest”. Whatever that means.

      1. The crimes are already there, waiting to be committed.

  5. I hate both social media and facial recognition software, but…

    This is kind of like putting up your headshot on every wall and telephone pole in town, and then complaining that people recognize you.

    1. No, it is like one of your friends putting a group photo that includes you up on every pole in town.

      I have never had a facebook account (I actually read the ToS), yet I am all over that fascist piece of corruption from “friends” that post photos willy nilly including location data.

      1. Replied to the child instead of the parent, but I agree with both of you. On your point, it would be pretty difficult for the algos without you being tagged and if tagged, without that being linked to an account.

      2. you need better friends and to charge for your likeness.

    2. I agree.

  6. This is beating back the tide. I approve of destroying facial recognition companies as they are found, but the technology won’t go away.

  7. ffs, I hate reason’s janky comment section

    1. Bye.

  8. >>illicitly collecting

    not if it’s done from public sites.

    1. Illicit:
      (law) Not approved by law, but not invalid.
      The bigamous marriage, while illicit, was not invalid.

      Public or private –

      1. maybe if it wasn’t your friends posting your likeness – the google car – but otherwise there were ways you could have stopped your likeness from being posted.

  9. Smith versus Maryland is a famous case in which the Supreme Court ruled that data “voluntarily” shared with a third party is not protected by the 4th amendment. Lots of people think that was wrongly decided, or at least not narrow enough. But what you’re talking about is something else, it’s publicly available information posted on social media sites that *anybody* can see. This lawsuit will fail, and it should. The burden is on us to abstain from publicly sharing information.

    1. *is* a fun case. dummy shouldn’t have dialed from home.

  10. Lots of complaining and emoting. What law was broken? Explain how people don’t have a free speech right to read and analyze photos.

    Technology doesn’t go backwards. Facial recognition is here to stay. Stop trying to restrict the tech and start fixing the law enforcement agencies you don’t trust with the tech.

  11. that the company used personal photos without consent, in violation of the country’s laws.

    Who was prosecuted?

  12. Our beloved socialist slave state needs facial recognition in every facet of our lives.
    After all, our wonderful secret police can’t be everywhere.

  13. Clearview is using copyrighted images for profit.
    Sounds like a textbook copyright violation.

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