Brandon Pierre is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

 

Facial recognition software company Clearview AI, Inc. muddies the waters again, challenging orders from privacy authorities in British Columbia and testing current Canadian privacy law. In February 2021, the Privacy Commissioner of Canada (“the Commissioner”) released a report on Clearview AI, Inc., concluding the company engaged in the unlawful collection, use, and disclosure of personal information through its facial recognition software. The Commissioner ordered Clearview AI to delete all data related to Canadians. While the Commissioner does not have the legislative authority to enforce this order, each province may generate privacy legislation to bind certain actors to its provisions.

Legal action in British Columbia

On December 14th, 2021, the Office of the Information and Privacy Commissioner for British Columbia issued a binding order to comply with the Commissioner’s 2021 recommendations (see Order P21-08). The order cites sections of the Personal Information Protection Act about the provision of consent (ss. 6,7, 8) and limitations on the collection (s. 11), use (s. 14), and disclosure (s. 17) of personal information. This order serves as the basis of Clearview AI’s petition to the courts of British Colombia. According to the Victoria Times, Clearview AI petitioned the Supreme Court of British Columbia to declare the unreasonableness of the order. Clearview AI has previously defended its position that the biometric data it leverages assists law enforcement agencies around the world. Surprisingly, a Special Report from the Commissioner discloses that many Canadian law enforcement agencies used Clearview AI’s facial recognition technology - including the Toronto Police, Peel Regional Police, Ontario Provincial Police, and the Royal Canadian Mounted Police. Read more on the ethical implications of law enforcement’s use of this technology in Nikita Munjal’s article, “Facial Recognition Technology: What have we consented to?”.

Why Clearview AI matters In the wake of Bill C-11’s swift and certain death on the order paper, the Clearview problem underscores the need for provincial legislation in the absence of clear federal directives in regulating privacy and accountability for the processing of personal information. Although Clearview AI and its supporters highlight the technology’s benefits, others argue that these benefits are insignificant when the general means by which it derives its technology clearly violates Canadians’ consent and privacy.

Privacy

Canadians are not the only people affected. Australia, Italy, France, and the United Kingdom have issued similar notices, each ordering the company to stop collecting, using, and disclosing biometric data and images from their residents. The self-described “World’s Largest Facial Network” boasts some 10 billion facial images sourced from public websites, news outlets, and social media.

Clearview AI matters because the Supreme Court of British Colombia’s decision can provide a roadmap for Canadian legislators to tackle urgent privacy violations.

Accountability

Among other legal defenses of its use and sourcing of the images that images, Clearview asserts that because these images are publicly available, they are not subject to copyright laws. Privacy considerations aside, this assertion has garnered the attention of prominent actors including Google, Facebook, Twitter, and LinkedIn. Clearview AI sources many, if not most, of their images from users of these services without the authorization of the companies that provide them. The technology companies contend that anything posted using their service is their protected intellectual property.

Conclusion

The Clearview problem exemplifies the multi-faceted issues of ownership, privacy, and accountability that confront legislators when drafting laws in the era of disruptive technologies such as facial recognition. To complicate matters further, rapidly developing technologies have the potential to circumvent the bounds of the laws before legislators can adequately address them.

There are muddy ethical and legal waters ahead for Clearview AI. The company abandoned all operations in Canada during the Commissioner’s investigation. Clearview AI retains images and biometric data on the likeness of thousands of Canadians among its hoard of billions of facial images.