Clearview AI: Ushering in a New Era of Facial Recognition Technology
I. Clearview AI – The Future of Facial Recognition Technology
In January of 2020, the New York Times revealed that Clearview AI – a “little-known startup” based in New York City – had devised a “groundbreaking facial recognition app” which had used over three billion photos obtained (“scraped”) from various social media sites, all obtained without consent of the social media platforms or its users, to create a secretive tracking and surveillance tool using biometric identifiers. The New York Times also revealed that this technology was being used by federal and state law enforcement agencies to solve “shoplifting, identity theft, credit card fraud, murder, and child sexual exploitation cases.” Up until this point, the company’s founder, Hoan Ton-That, had intentionally “shrouded [the company] in secrecy,” allegedly to avoid debate and publicity about the implications of widespread use of facial recognition technology (“FRT”). This news came as a shock to the world – not because facial-recognition technology existed or that police utilized it, but because the database contained billions of photos scraped from social media sites, and went far beyond the bounds of a police agency’s standard collection of mug shots. Using this technology, police would be able to identify any individual for almost any reason, regardless of an individual’s previous arrest record or prior run-ins with the police. In particular, the news shocked the tech world, causing tech giants such as Facebook, Google, Twitter, and YouTube to issue cease-and-desist letters to Clearview AI regarding its data-scraping practices. Additionally, Apple disabled the company’s iPhone application for contravening Apple’s rules in order “to distribute its apps to law enforcement agencies and other customers.” Despite these actions taken against it, Clearview has largely ignored the cease and desist letters and continued business as usual, asserting that it has a First Amendment right to gather public information.
The magnitude of Clearview AI’s reach was eventually revealed to be far greater than anyone could have imagined. In February 2020, Buzzfeed News reported that Clearview AI maintained contracts with thousands of police agencies and private companies around the world, including the FBI, U.S. Department of Justice, Best Buy, Macy’s, Interpol, and a sovereign wealth fund in the United Arab Emirates. The news outlet reported that Clearview had “provid[ed] access not just to organizations, but to individuals within those organizations — sometimes with little or no oversight or awareness from their own management.” Indeed, when the news source reached out to some of these institutions, many of them “had no idea their employees were using the software or denied ever trying the facial recognition tool.” This is apparently due to the fact that one does not need to contract with Clearview AI to utilize its services, but can enroll in a 30-day free trial before purchasing. This information, including the names of around 2,900 institutions utilizing the technology, was revealed to Buzzfeed via a stack of internal documents sent in by an anonymous source. The documents “detail just how far Clearview has been able to distribute its technology, providing it to people everywhere, from college security departments to attorneys general offices, and in countries from Australia to Saudi Arabia.” According to an independent investigation performed by Buzzfeed, individuals “associated with 2,228 law enforcement agencies, companies, and institutions have created accounts and collectively performed nearly 500,000 searches — all of them tracked and logged by the company.”
II. Use of FRT in US Law Enforcement
United States federal agencies have already taken advantage of the benefits of Clearview’s comprehensive database. Immigration and Customs Enforcement (ICE) signed a contract with Clearview in August 2020 for access to its vast database for use in the agency’s investigations. The contract is worth $224,000 and “lists ‘ICE mission support dallas [sic]’ as the contracting office.” This was just another step in the agency’s history of using FRT. In fact, a month before this contract was revealed, the Washington Post reported that the agency was making use of state drivers’ license databases for facial recognition searches. Representative Jim Jordan of Ohio, ranking Republican of the House Committee on Oversight and Reform, took issue with this in particular, and pointed out in a House hearing that these photos were obtained without the consent, or even the knowledge, of the individuals to whom the photos belonged. This practice mirrors the arrangement with Clearview, who also obtained, continues to obtain, and distributes photos of individuals without their consent. Clearview CEO Ton-That commented that the contract is with “Homeland Security Investigations (HIS), which uses [the] technology for their Child Exploitation Unit and ongoing criminal investigations.”
Many are concerned with FRT’s impact on civil rights. There is a growing body of literature which shows that FRT consistently exhibits low rates of accuracy in identifying certain individuals – particularly, the lowest rates of accuracy are in individuals who are “female, Black, and 18-30 years old.” Essentially, this means that there is a higher chance that FRTs will misidentify a “female, Black, and 18-30” year-old person than, for example, a middle-aged white man. In 2018, a landmark study known as the “Gender Shades Project,” applied “an intersectional approach…to appraise three gender classification algorithms, including those developed by IBM and Microsoft.” Additionally, continual surveillance has been shown to lead to widespread fear, behavioral changes, including avoidance of activism, and has been shown to affect lower income people disproportionately as expanding the reach of government oversight can lead to denial of welfare benefits and healthcare.
III. Legal Challenges and Congressional Action
The company faces many legal challenges, including an allegation that Clearview AI violated the Illinois Biometric Information Privacy Act (BIPA), which “requires companies that collect, capture, or obtain an Illinois resident’s biometric identifier — such as a fingerprint, faceprint, or iris scan — to first notify that individual and obtain their written consent.” The ACLU alleges that Clearview AI, by creating a database of millions of Illinoisan’s biometric data without their consent, has violated BIPA and infringed upon the privacy rights of millions. The suit also alleges that the company does not maintain sufficient security personnel or infrastructure necessary to protect the sensitive data they collect. They point to the fact that “over the course of only two months, Clearview’s secret internal client list was leaked to an online news organization,” in addition to an internal server error which exposed sensitive company source code data.
Given the potential civil rights abuses, the likelihood of increased racial discrimination by law enforcement, and the link between widespread use of FRT and the suppression of First Amendment demonstrations, Clearview has also caught the attention of Congress. In April of this year, a bipartisan bill was introduced which would prevent law enforcement and intelligence agencies from buying scraped data from Clearview AI. Entitled the “Fourth Amendment is Not for Sale Act,” the bill would require US investigative agencies to get a warrant in order to obtain data from data brokers like Clearview AI. It also “seeks to shut loopholes that allow intelligence agencies to obtain metadata on Americans’ calls, emails, and texts” sent to individuals outside the US without a FISA Court review. It is backed by civil rights and liberties groups such as the ACLU, Electronic Frontier Foundation, and the NAACP.
While the future of this bill is uncertain, it has garnered bipartisan approval and is supported by twenty senators. “Doing business online doesn’t amount to giving the government permission to track your every movement or rifle through the most personal details of your life,” said Senator Ron Wyden. “There’s no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider. This bill closes that legal loophole and ensures that the government can’t use its credit card to end-run the Fourth Amendment.” The House version of the bill is expected to be introduced sometime in the near future.
 Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times (Updated Feb. 10, 2020), www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.
 Alfred Ng & Steve Musil, Clearview AI hit with cease-and-desist from Google, Facebook over facial recognition collection, CNET (Feb. 5, 2020, 6:10 PM), www.cnet.com/news/clearview-ai-hit-with-cease-and-desist-from-google-over-facial-recognition-collection/.
 Logan McDonald, Ryan Mac, & Caroline Haskins, Apple Just Disabled Clearview AI’s iPhone App For Breaking Its Rules On Distribution, Buzzfeed News (updated Feb. 28, 2020, 4:25 PM), www.buzzfeednews.com/article/loganmcdonald/apple-clearview-app-violates-tos-supension.
 Ng & Musil, supra note 6.
 Ryan Mac, Caroline Haskins, and Logan McDonald, Clearview’s Facial Recognition App Has Been Used By The Justice Department, ICE, Macy’s, Walmart, And The NBA, Buzzfeed News (Feb. 27, 2020, 11:37 PM), www.buzzfeednews.com/article/ryanmac/clearview-ai-fbi-ice-global-law-enforcement.
 Id. The source apparently wished to remain anonymous for fear of retaliation. Id.
 Id. The documents even revealed that the technology had allegedly been utilized within the White House. Id. When questioned, the White House declined to confirm; however, the documents showed that a single user performed six searches in September 2019. Id.
 Kim Lyons, ICE just signed a contract with facial recognition company Clearview AI, The Verge (updated Aug. 14, 2020, 3:19 PM), www.theverge.com/2020/8/14/21368930/clearview-ai-ice-contract-privacy-immigration.
 Id. See also Drew Harwell, FBI, ICE find state driver’s license photos are a gold mine for facial-recognition searches, Wash. Post (July 7, 2019, 2:54 PM), www.washingtonpost.com/technology/2019/07/07/fbi-ice-find-state-drivers-license-photos-are-gold-mine-facial-recognition-searches/.
 Hill, supra note 1.
 Lyons, supra note 16.
 Alex Najibi, Racial Discrimination in Face Recognition Technology, Harv. U. Grad. Sch. Arts and Scis. (Oct. 24, 2020), sitn.hms.harvard.edu/flash/2020/racial-discrimination-in-face-recognition-technology/.
 See id.
 Kaleigh Rogers, What Constant Surveillance Does to Your Brain, Vice (Nov. 14, 2018, 7:00 AM), www.vice.com/en/article/pa5d9g/what-constant-surveillance-does-to-your-brain.
 Katelyn Ringrose and Divya Ramjee, ARTICLE: Watch Where You Walk: Law Enforcement Surveillance and Protester Privacy, 11 Cal. L. Rev. Online 349, 364 (Sept. 2020), www.californialawreview.org/law-enforcement-surveillance-protester-privacy/. These behavioral changes include protestors wearing sunglasses and painting their faces to avoid detection by FRT. Id.
 Nathan Munn, How Mass Surveillance Harms Societies and Individuals – and What You Can Do About It, CJFE (Nov. 8, 2016), www.cjfe.org/how_mass_surveillance_harms_societies_and_individuals_and_what_you_can_do_about_it.
 Barton Gellman and Sam Adler-Bell, The Disparate Impact of Surveillance, The Century Found. (Dec. 21, 2017), tcf.org/content/report/disparate-impact-surveillance/?agreed=1.
 ACLU v. Clearview AI, ACLU (May 27, 2020), www.aclu.org/cases/aclu-v-clearview-ai.
 Complaint at 19, ACLU v. Clearview AI, (Ill. Cir. Ct. 2020) (No. 2020 CH 04353).
 Id. at 20.
 Id. See also Zach Whittaker, Security Lapse Exposed Clearview Source Code, TechCrunch (April 16, 2020, 1:54 PM), techcrunch.com/2020/04/16/clearview-source-code-lapse/.
Kris Holt, Senators want to block government agencies from buying Clearview AI data, Yahoo! Finance (Apr. 21, 2021), finance.yahoo.com/news/senate-bill-clearview-ai-data-ban-185931094.html. See Fourth Amendment Is Not For Sale Act, S. 1265, 117th Cong. (2021) (available at www.wyden.senate.gov/imo/media/doc/The%20Fourth%20Amendment%20Is%20Not%20For%20Sale%20Act%20of%202021%20Bill%20Text.pdf).
 USA: Senators introduce Fourth Amendment is Not For Sale Act, DataGuidance (Apr. 22, 2021), www.dataguidance.com/news/usa-senators-introduce-fourth-amendment-not-sale-act.
 Holt, supra note 34.