The First Amendment Should Protect Us from Facial Recognition Technologies – Not the Other Way Around

Talya Whyte is a 3L at NYU Law. Jake Karr is the Deputy Director of NYU’s Technology Law & Policy Clinic and a fellow at the Engelberg Center on Innovation Law & Policy. Image by Alan Warburton / © BBC / Better Images of AI / Quantified Human / CC-BY 4.0 Should the First Amendment allow facial recognition companies to scrape photos of you off the internet and train AI surveillance systems that law enforcement then uses against peaceful protestors? Clearview AI thinks so. In recent years, Clearview has faced numerous lawsuits seeking to hold the company accountable for its invasive facial recognition app. And in every one of the suits, the company has attempted to immunize itself from liability by arguing that its business model for developing and deploying its facial recognition technology is “speech” protected by the First Amendment.  But if courts were to accept this argument, it would be dangerous. Not only would it allow Clearview’s activities to go unchecked, but it would also create a major obstacle to regulating and protecting the public from the harms and risks of emerging AI technologies. The absurdity of Clearview’s First Amendment defense is laid bare in litigation that is currently working its way through the California state courts. In Renderos v. Clearview, immigrants’ rights activists and community organizations sued Clearview, along with local governments and law enforcement agencies that have purportedly used the company’s facial recognition app. The plaintiffs are particularly concerned because they regularly engage in peaceful protest…The First Amendment Should Protect Us from Facial Recognition Technologies – Not the Other Way Around