UPDATE: After OTG went public about the subpoenas from Clearview AI, the company withdrew its subpoenas on September 27, 2021.
In January 2020, Open The Government and MuckRock used public records requests to expose a start-up that was scraping Americans’ images and personal information from social media sites, and selling the data to law enforcement agencies. Now, that company, Clearview AI, has subpoenaed OTG and one of its employees to turn over all of the responses we received to Freedom of Information Act requests and all First Amendment protected communications we have had with the media about this matter. The subpoenas stem from a lawsuit alleging Clearview committed privacy violations. The suit does not involve OTG.
The police departments’ complete responses to our FOIA requests have always been accessible here, where Clearview AI and the public can access them. (For the record, Clearview did not need OTG’s help, and could easily have received the same information by making its own public records requests.) Hundreds of documents are available for review, but we do not make public First Amendment-protected confidential communications between OTG and reporters like those that Clearview AI seeks.
Clearview AI seems to have targeted OTG because of our groundbreaking work exploring the use of facial recognition technology at federal, state and local agencies. In the fall of 2019, OTG launched a joint project with MuckRock requesting information from more than 100 police departments across the country to learn more about the growing use of the technology. We also created a citizen’s guide, Know Your Rights: Investigate the Use of Facial Recognition in Your Backyard, to empower individuals to track and investigate the proliferation of the technology in American neighborhoods.
OTG first learned about Clearview AI by reviewing marketing materials and invoices we obtained from police departments in response to our records requests. We uncovered Clearview’s controversial methods of building facial recognition databases with images it scraped from social media—a stark departure from traditional sources such as mugshots. It means Clearview’s technology can capture any image of you or your loved ones online in its facial recognition database. The images can be photos you post online, images on which you are tagged in social posts, or even photos a stranger took of you (hanging out in the background of the shot) and posted online without your knowledge or consent. In other words, the technology completely upends an individual’s right to meaningfully consent to the collection or use of their images.
The potentially serious privacy and civil liberties violations of such an application prompted us to reach out to a New York Times reporter, encouraging her to investigate further. Our collaboration with the Times led to the outlet’s front-page exposé on Clearview’s secret practice of scraping billions of images and profiles from social media and selling them to law enforcement.
Since the story in the Times, numerous media outlets continue to shed light on Clearview’s activities, and the company is the subject of multiple international lawsuits and investigations. In Congress, lawmakers have probed Clearview about its technology and its effect on First Amendment-protected activity and have introduced bills that would outlaw its use. A growing list of U.S cities have also banned police use of the technology.
OTG commits to continuing our research and advocacy to inform the public, and we will not be deterred by intrusive, inappropriate subpoenas. We will continue to use public records laws to shine a light on secretive surveillance companies that sell such technology to law enforcement. To ensure greater transparency and accountability around agencies’ use of facial recognition, OTG will continue to push Congress to apply FOIA to private contractors such as Clearview AI, so as to hold them accountable and to support legislation that puts a moratorium on the use of facial recognition technology.
Open The Government thanks Ballard Spahr for its pro bono representation in this matter.
Clearview AI subpoenaed Open The Government to turn over responses we received to FOIA requests about police use of the technology.
Since the NYT story on Clearview, numerous outlets have covered - and continue to shed light - on the company's activities. Clearview is the subject of numerous lawsuits and attorneys general investigations.
Open The Government will continue to use public record laws to shine the light on secretive surveillance companies that sell invasive, racially-biased, inaccurate technology to law enforcement.
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