Facial recognition company that scrapes pictures without consent loses appeal

A U.S. company that has gathered approximately 30 billion photos by crawling over social media sites failed to overturn a previous court decision that essentially barred the company from operating in B.C.

Clearview AI once provided facial recognition services to law enforcement agencies including the Port Moody Police Department, the RCMP, and police departments in Vancouver, Victoria and New Westminster.

Each face is broken down into 512 data points. The combination of the data points from each facial line and contour produces a unique vector which allows Clearview’s customers to “identify a specific ‘target,” according to a previous judgment. The images and associated metadata are stored indefinitely on the company’s servers.

B.C.’s privacy commissioner previously concluded the company collected personal information without consent. In appealing that decision and a subsequent B.C. Supreme Court verdict, Clearview argued the company had “no real and substantial connection” to B.C. as the company no longer markets in the province, and is indifferent to location.

The acquisition of facial data in B.C. is “incidental” to its operations, the company argued.

“I would disagree,” wrote B.C. Court of Appeal Justice Nitya Iyer.

Clearview’s success depends on building a worldwide databank based on images scraped from websites like Facebook, YouTube, and Instagram. The company contends it can’t exclude B.C. from its image crawler, Iyer noted.

“That means Clearview’s access to B.C. (and every other jurisdiction) is essential to its operation. In my view, this supports a conclusion that BC’s relationship to Clearview is substantial, not incidental,” Iyer wrote.

The company argued the information it collects is publicly available.

However, taken to its natural conclusion, this would undermine the control users can have over their information, according to Iyer.

Clearview also made the case their service gives law enforcement a, “quick and accurate investigative tool,” and any detriment would be caused by police, not by Clearview.

However, there is a risk of misidentification as well as potential for exposure due to data breaches.

The case is about the company’s “systematic acquisition of facial data regardless of jurisdiction,” and their efforts to: “commercially exploit that information by disclosing it to law enforcement and other entities,” Iyer wrote.

The information includes the facial data of children, the decision noted.

The privacy commissioner’s decision was reasonable, the court concluded, quoting the previous description of Clearview as taking part in the: “mass identification and surveillance of individuals by a private entity in the course of a commercial activity.”

The company’s appeal was dismissed.

Previous decision

B.C. Supreme Court Justice Palbinder Kaur Shergill noted that the vast majority of the people whose information has been captured have never been and will never be implicated in a crime.

Shergill also referred to studies regarding the chances of misidentification, which have been shown to be higher for people of colour.

It was disingenuous for Clearview to argue that it was impossible to comply with the privacy commissioner’s orders, Shergill concluded.

“If it is indeed impossible for Clearview to sufficiently identify personal information sourced from people in British Columbia, then this is a situation of Clearview’s own making,” the justice wrote.