California Court Denies Facial Recognition Pariah Clearview’s Anti-SLAPP Motion Over Its Web Scraping Activities
Clearview wants to be the best in a shady business. As facial recognition tech has undergone increasing public scrutiny, Clearview has chosen to be the turd floating in the government surveillance punchbowl. Clearview scrapes public websites for pictures and data, and sells access to its immense database and the AI to exploit it to whoever wants it — something that has seen it sued, fined, and ejected from barely polite facial recognition society.
Clearview still seems to believe it’s a net good for society, despite society doing just fine before Clearview came along and scraped up all of its data. But is it? It seems unlikely. The law enforcement wins it touts in its promotional material appear exaggerated. So, it’s a failure on the public safety side of things. This leaves it only one other argument: that it’s not specifically illegal to scrape data from websites and sell data and AI to government agencies.
It’s a good argument, as far as that goes. No one should desire to see the CFAA become even worse. It has spent years being abused to harm researchers and third-parties who build their businesses on savvy exploitation of public data. The difference is Clearview sells this to governments, which may make it less trustworthy, but fully within its (USofA) rights.
Or so it would seem. Well within its federal rights, but perhaps not compliant with state laws and state constitutions. Clearview’s webscraping saw it sued in California state court for violating state privacy laws. In response, Clearview argued it had a First Amendment right to not only scrape websites, but sell the data haul to whoever wanted to purchase access.
In response to being sued for violating California law, Clearview decided it was a First Amendment champion. It tried to get this lawsuit dumped under the state’s anti-SLAPP law, which allows defendants a quick exit if they can show the lawsuit is nothing more than an attempt to silence commentary on issues of public interest.
Clearview is partially correct. This lawsuit was an attempt to prevent Clearview from doing what it does: scrape thousands of websites to obtain billions of data points… all without informing scraping victims that they’re being added to a database accessible by government agencies. But the scraping is perhaps protected under the law, even if the rest of what Clearview does isn’t.
This recent California court decision [PDF], highlighted by Daphne Keller on Twitter, says Clearview may be right about some stuff, but not the stuff that matters in anti-SLAPP motions.
The court says it’s factually undeniable what Clearview does:
Clearview collects the images and biometric information of California residents (including Plaintiffs) without notice or consent by scraping images from websites and platforms, such as Facebook, Twitter, and Venmo.
It also points out Clearview has voluntarily agreed to stop doing certain things in response to being sued in multiple states.
Clearview is legally bound by a Consent Judgment not to license the version of its app that uses the facial vector database to non-government entities, unless otherwise permitted to do so by law.
The crux of the issues examined by the court:
[T]he claims implicate the public policy issue of whether a private corporation can collect, analyze, compile and maintain information on persons for sale to California law enforcement when it would arguably be unlawful (potentially unconstitutional search) if California law enforcement operated a similar program to collect, analyze, and maintain data to identify persons from photographs.
Whether or not use of Clearview AI is lawbreaking by proxy is at stake here, along with Clearview’s ability to continue offering services to California government agencies. Clearview responded to the lawsuit by asking the court to dismiss it under California’s anti-SLAPP law. The court recognizes there are some First Amendment implications here, but says Clearview’s counterpoints aren’t persuasive.
Defendant has not demonstrated that the claims arise from its actions “in furtherance of” free speech “in connection with” a public issue.”
That is explained in more detail shortly thereafter:
First, the biometric analysis and maintenance of the database and the subsequent sale of that information is not “in connection with an issue under consideration or review by a government entity.” (CCP 425.16(e)(2).) The sale of the information is the sale of a law enforcement tool like the sale of cars, uniforms, and computer systems to law enforcement. The sale is not for the purpose of supporting the deliberation of a government body on an issue under consideration or review. It would be a stretch to describe the police investigation of each and every discrete crime as the “consideration or review” of a matter by a government entity.
Second, the biometric analysis and maintenance of the database and the subsequent sale of that information is not “conduct in furtherance of … the constitutional right of free speech in connection with a public issue or an issue of public interest.” (CCP 425.16(e)(4).)
The biometric analysis and maintenance of the database is not “speech.”
Seeking to shut down Clearview’s web scraping and AI sales is not the equivalent of silencing speech about issues of public interest, even if it’s connected to issues of public interest. What matters is what is being expressed (if anything).
Crime is a public issue, but that does not mean that any sale of any good or service to law enforcement is a contribution to the public discussion…
The lawsuit alleged Clearview misappropriated residents’ info in order to profit from this illicitly (under state law) obtained data. The court says this violation occurred, which makes it almost impossible to dismiss with a motion claiming Clearview is being somehow illegally silenced by the lawsuit.
Clearview’s “appropriation” was the taking of the likenesses from the internet.
Clearview then “used” the likenesses. Clearview was free to use the likenesses, to pass them along, or to participate in commentary on social media on matters concerning the likenesses. That would have been “use” without “advantage.”
Clearview used the likenesses to its “advantage, commercially or otherwise.” The “advantage, commercially or otherwise” consisted of the of the use of the images as the raw material for its biometric analysis, the data in the database, and then as part of the finished product when Clearview sold its services to law enforcement.
All bad news for Clearview. Except for this part, which is good news for Clearview (at least in California). And it’s good news for every entity that scrapes data from websites for any number of reasons.
There is nothing unlawful about (1) scraping the internet for photographs and information.
As it should be. That act should be protected, whether under the First Amendment or any reasonable interpretation of the CFAA. What matters is what’s done with this information. In this case, it’s the packaging for resale to Clearview’s customers. That’s the “advantage” that puts Clearview on the wrong side of California law.
What matters here is that Clearview’s actions would be illegal if cops did it on their own. That Clearview acts as an intermediary does not make its conduct any less illegal. And since its actions fall outside of protected speech, it can’t try to dodge this lawsuit with an anti-SLAPP motion.
This isn’t about speech, as the court concludes. This is about violating California residents’ rights. That’s what has been alleged. Pretending this is about Clearview’s First Amendment rights doesn’t change anything. The lawsuit can continue.
Plaintiffs adequately allege a legitimate privacy interest, a reasonable expectation of privacy, and an egregious breach of social norms.
As has been argued by Clearview, its collection may be constitutional, at least in states where laws haven’t created additional privacy protections that outweigh Clearview’s rights. But that doesn’t work here. Clearview does more than collect. It packages and sells what it collects, all without any consent from the collected. That’s not protected speech. And someone alleging it isn’t is not trying to keep Clearview from participating in discussions about issues of public interest. They just want Clearview to quit fucking around with their data, something that’s definitely not covered by the Constitution.