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EFF says First Amendment can’t save Clearview AI biometric faceprinting



Arguments can be made for protecting faceprinting under the First Amendment, but the Electronic Frontier Foundation says biometric face-scraping vendor Clearview AI’s business model is not one of them.

The EFF has filed a friend-of-the-court brief in a lawsuit filed by the American Civil Liberties Union seeking to stop Clearview from scraping the Internet for photographs, storing the biometric data and then selling access to the resulting database.

That activity, according to a number of civil rights organizations, including the ACLU, that are suing Clearview, violates Illinois’ Biometric Information Privacy Act. That law prohibits the surreptitious and nonconsensual capture of state residents’ biometric identifiers.

Facial recognition software startup Clearview has asked for the case to be dismissed. It has captured billions of photos of people globally including those of millions of people in Illinois.

In a court filing, Clearview’s attorneys said that the company had taken steps that make the lawsuit moot. For instance, the company made data processing changes to avoid biometric data on Illinois-based web sites. Notably, the motion to dismiss also claims a First Amendment right to use biometric data it finds.

The EFF, which was organized at the dawn of the Internet Age to protect civil liberties online, is arguing that a dismissal on is not warranted.

“Above all, EFF agrees with the ACLU that Clearview should be held accountable for invading the biometric privacy of millions of individuals,” according to the organization’s amicus brief.

Specific to the First Amendment, Clearview’s biometrics dragnet “does not concern speech on a public matter.” And the company’s aim is solely an economic one.

There is some Constitutional wiggle room when it comes to those two conditions, the EFF says, but not enough to protect Clearview’s faceprinting in the shadow of Illinois’ biometric privacy law.

It is not known when Judge Pamela McClean Meyerson of the circuit court of Cook County, Ill., will decide on Clearview’s motion.

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