Court Rejects Clearview's First Amendment, Section 230 Immunity Arguments

Free Speech

from the don't-allow-a-bad-company-to-generate-bad-courtroom-precedent-though dept

Back in March, facial recognition tech upstart Clearview was sued by the Vermont Attorney General. The AG alleged Clearview’s scraping of sites to harvest photos (and other biometric/personal info) of Vermont residents violated state privacy laws. It also alleged Clearview had mislead residents and customers about the company’s intended uses and its success in the law enforcement marketplace.

Clearview’s response to the lawsuit was… interesting. It tried to invoke Section 230 immunity, claiming it was nothing more than a host for third-party content. The problem with this argument was it wasn’t being sued over the content itself (which wasn’t defamatory, etc.) but over its collection of the content, which did not provide Vermont residents with notice their information was being collected and gave them no way to opt out.

The company then hired a prominent (but opportunistic) First Amendment lawyer to argue it had a First Amendment right to collect and disseminate this information, even when its collection efforts routinely violated the terms of service of nearly every site it scraped to obtain photos. This argument was also interesting in its own way, but had the potential to cause complications for plenty of entities not nearly as universally-reviled as Clearview. In some ways, Clearview is the Google of faces, gathering information from all over the web and delivering search results to Clearview users.

The Vermont court has finally weighed in [PDF] on Clearview’s arguments. And it doesn’t like most of them. (h/t Eric Goldman)

Here’s the court’s take on the Section 230 argument:

Importantly, the basis for the State’s claims is not merely the photographs provided by third—party individuals and entities, or that Clearview makes those photographs available to its consumers. Instead, the claims are based on the means by which Clearview acquired the photographs, its use of facial recognition technology to allow its users to easily identify random individuals from photographs, and its allegedly deceptive statements regarding its product… This is not simply a case of Clearview republishing offensive photographs provided by someone else, and the State seeking liability because those photographs are offensive. Indeed, whether the photographs themselves are offensive or defamatory is immaterial to the State’s claims.

Instead, the claims here attempt to hold Clearview “accountable for its own unfair or deceptive acts or practices,” such as screen—scraping photographs Without the owners’ consent and in Violation of the source’s terms of service, providing inadequate data security for consumers’ data, applying facial recognition technology to allow others to easily identify persons in the photographs, and making material false or misleading statements about its product.

So, no dismissal based on Section 230 immunity for Clearview. The court then tackles the First Amendment assertions. The court says the First Amendment does not cover the commercial speech targeted by the AG’s lawsuit.

The court next observes that at least some of the conduct alleged in Counts and III is largely nonexpressive in nature. The allegations that Clearview provided inadequate data security and exposed consumers’ information to theft, security breaches, and surveillance lack a communicative element. The First Amendment does not protect such conduct.

Whether the software itself is covered by the First Amendment is more difficult to answer.

Because the Clearview app’s raw code is not at issue here as in Corley, the app arguably has no expressive speech component and is more similar to the “entirely mechanical” automatic trading system in Vartuli that “induce[d] action without the intercession of the mind or the will of the recipient.” Vartuli, 228 F.3d at 111. The user simply inputs a photograph of a person, and the app automatically displays other photographs of that person with no further interaction required from the human user. In that sense, the app might not be entitled to any First Amendment protection. Complicating matters, however, is the fact that Clearview’s app is similar to a search engine, and some courts have generally recognized First Amendment protection for search engines, at least to the extent that the display and order of search results involve a degree of editorial discretion.

Whether or not it’s actually speech doesn’t appear to matter, at least not to this court. It says the “speech” — protected or not — can be regulated by the Vermont government. Since the AG isn’t suing over the content of the “speech” itself but rather the use of personal information gathered from Vermont residents, the lawsuit against Clearview can continue.

Presumably, the State has no problem with Clearview operating its app so long as the Vermonters depicted in its photograph database have fully consented. The regulation sought by the State here is content-neutral and, accordingly, subject to intermediate scrutiny.

But then the court goes on to say that even if this violates Clearview’s First Amendment rights, it barely violates them.

Furthermore, any incidental restriction on speech imposed by the State’s action would not burden substantially more speech than is necessary to further the State’s interest in protecting privacy. The State estimates that the reliefit requests will leave more than 99 percent of Clearview’s database intact.

That’s a little more problematic. The court does go on to state that Clearview could avoid this by seeking affirmative consent from Vermont residents. It also says the court would ensure that any regulation proposed by the state would be subjected to further scrutiny to ensure the burden on Clearview is minimal. But that seems unlikely to be true if the court already believes burdensome regulation would only result in a 1% reduction in free speech.

The court also upholds all the deceptive claims allegations. Clearview’s marketing has been far from honest. It has touted law enforcement successes that have been directly contradicted by the named law enforcement agencies. It has told people they can ask to be removed from its database, but then says that’s only subject to laws that aren’t in force in most of the nation. It has also claimed its only for legitimate law enforcement use, but has sold the software to a number of private entities and encouraged law enforcement officers to “run wild” while testing the app using faces of friends and family members. All of these claims survive.

The longer Clearview exists, the more lawsuits it will face. Its collection method — scraping sites to obtain personal data — is already problematic. The tech itself remains unproven, having never been tested for accuracy by an independent outside agency. If this is the best it can do in its own defense, it’s going to run itself out of money before it secures any favorable precedent.

Filed Under: 1st amendment, facial recognition, section 230
Companies: clearview, clearview ai