As the company confronts mounting criticism over its disturbing surveillance practices, its chief executive, Hoan Ton-That, is rolling out an audacious new defense: he claims that Clearview’s practices are protected by the first amendment. Ton-That’s upside-down views of civil liberties are, it seems, just as Orwellian as his company’s surveillance apparatus.
Fortunately, he is dead wrong. The constitution does not shield Clearview AI from accountability. We can, and must, pass laws to limit it and other facial recognition systems.
Facial recognition is extremely dangerous. It offers us the horrible choice between dysfunction and dystopia. On the one hand, studies have repeatedly shown that facial recognition can have serious accuracy problems, especially for people of color. Even when these systems do work, however, they give the government unprecedented power to catalog and track the activities and interactions of people everywhere. No wonder the technology is employed most frequently by authoritarian states like China, which reportedly uses facial recognition to spy on its persecuted Muslim minority.
The unrestricted use of facial recognition technology is clearly incompatible with a democratic society. The first amendment does not give companies the unassailable right to engage in “speech” that involves sending out the intimate details of our lives.
Laws have existed for decades which prevent companies from sharing sensitive user information – for example, the Electronic Communications Privacy Act prohibits companies from voluntarily sharing the contents of our text messages or emails, except for narrow exceptions such as emergencies. Phone companies have long been prohibited from handing out or selling our phone records, and more recent rules similarly prohibit the sale of our phones’ GPS data (although lax FCC enforcement has caused serious harm).
Just because images or information were hypothetically obtained from public sources doesn’t totally nullify our right to privacy. The supreme court recently ruled that the fourth amendment bars the police from tracking our cellphone locations without a warrant, even when you are traveling in public. And just as the fourth amendment already protects us from warrantless cellphone tracking, future laws can guard us from facial recognition surveillance technologies that effortlessly catalog our location in much the same way.
Ton-That specifically defended his company’s ability to scrape our public photos off social media. Web scraping isn’t always bad – academics, researchers, and journalists all employ scraping in highly beneficial ways. But we don’t need to totally ban scraping in order to stop bad actors like Clearview AI. We can enact policies that limit how our personal data is shared and used.
We must pass laws that restrict facial recognition technologies, both in the private sector and when used by government. Attempts to defend mass surveillance under the auspices of free speech are misguided at best and sinister at worst. All Americans should push back.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.