Surveillance of individuals is a growing threat to racial justice, in particular freedom of speech and information security. Thus, the EFF supports a ban on the use of this dangerous technology by the government, as well as laws that require corporations to consent to a person before taking a fingerprint.
One of the most feared offenders is Clearview AI, which extracts the fingerprints of billions of people without their consent and uses those fingerprints to help police identify suspects. For example, Miami police worked with Clearview to identify protesters against black-led police violence.
Clearview’s fingerprint violates the Illinois Biometrics Privacy Act (BIPA), which requires consent to obtain a fingerprint. Clearview now faces numerous consolidated BIPA lawsuits in federal court. He is also facing another lawsuit filed by the Illinois ACLU and ACLU, in a state court. In both federal and Illinois courts, Clearview argues that the First Amendment prohibits these BIPA requirements. We disagree and have filed an amicus statement, saying this in each case.
This week, a federal judge dismissed the defense of the First Clearview Amendment, dismissed the company’s motion for disqualification and allowed the trial to continue. This is an important victory for our privacy over Clearview’s profits.
The federal judge explained that he would apply the “intermediate standard of control” of the First Amendment to restrict activities that have “both verbal and nonverbal elements.” This test originated in United States v. O’Brien (1968), which concerned the prosecution of a man who publicly burned his conscription card in protest of the Vietnam War. The O’Brien The test considers, among other factors, whether the government has an “important interest” and whether the restraint of speech is “more than necessary” to promote that interest.
A federal judge ruled that BIPA was passing this test. It explains that Illinois has an important interest: “facial biometrics are easily observed and pose a serious and immediate threat to privacy, individual autonomy and freedom.” The court underlined the plaintiffs’ assertion that the fingerprints “are not public information.” In addition, the judge wrote, BIPA is “narrowly adapted” to the government’s interests because it protects privacy by “allowing residents to share their biometric information through consent.”
EFF agrees that the interim control is the correct test and that BIPA passes this test. And: EFF would have gone the other way to come to the interim control. As we explained in our briefings in these Clearview cases, the First Amendment protects not only utterances but also the necessary predicates for utterances, including the collection and creation of information. Thus, the EFF has long advocated for the protection of the first amendment to the right to record police duty. However, although Clearview’s fingerprint is eligible for First Amendment protection, these cases should be assessed using an intermediate test – as opposed to a “rigorous” test that further protects speech – because it does not address a matter of public concern, and Clearview has purely commercial purposes.
Last year, an Illinois judge also rejected the defense of the First Amendment Clearview.
Read here the opinion of February 14, 2022 Judge Sharon Johnson Coleman of the U.S. District Court of Northern Illinois in With respect to Clearview AI, Inc., the consumer privacy dispute.