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The biometric law of the jungle: It’s always open season on data-gazelles for data-lions

The biometric law of the jungle: It’s always open season on data-gazelles for data-lions

Is there a difference between what Clearview AI has done by scraping social media photos to be used for commercial gain as part of a biometric database and a street photographer who illicitly sells candids for commercial use without model releases?

An article in Media Post quotes a number of deep thinkers on the First Amendment to the U.S. Constitution, which is an intrinsic part of that debate. Clearview, they say, is in the right.

It is not a new (or particularly popular) position, but it appears to be convincing some people. Last week, Clearview raised $30 million in a series B round.

UCLA law professor and Libertarian Eugene Volokh is quoted saying that collecting and disclosing information, as Clearview continues to do, is legal as long as it was found in public view.

That Clearview analyzed each image for use by facial recognition software and made the database available to the company’s founders’ friends as a party favor and to subscribers like police departments is irrelevant, in this view.

It does not matter that some people feel posting their faces on Facebook, for example, is not the same as putting them on a billboard, according to Volokh and like-minded peers. Nor does it matter if someone had no inkling of the consequences of posting an anniversary picture five years ago in a family blog that Clearview software crawled.

The biometrics are African gazelles and people building face biometric databases are lions.

That is Clearview’s argument in a case filed by the American Civil Liberties Union and others last May in Illinois. The plaintiffs’ argument is that Clearview did not get consent to use Illinois residents’ biometric data as required by the state’s Biometric Information Privacy Act.

If chutzpah were a legal principle, the case would undoubtedly be ground-breaking. Clearview is financially and fraternally backed by, among others, Peter Thiel. Thiel spent $10 million to sue Gawker Media out of business after it outed him as gay, an illegal abuse of his privacy, he said.

One of the many questions that need to be answered is this: If people can control images of themselves captured by a commercial photographer in, say, a public park, should they also have the right to control commercial use of their image when someone captures it in the electronic park called social media?

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