Four of Canada’s privacy commissioners have denounced the controversial facial recognition company Clearview AI.

The software firm has been used by law enforcement agencies around the world – including Toronto – allowing them to follow up on potential suspects with Clearview’s massive profile database. Clearview’s scraping of billions of images of people from across the internet represented mass surveillance and was a clear violation of the privacy rights of Canadians, the commissioners said in a report issued this morning.

“What Clearview does is mass surveillance and it is illegal,” federal privacy commissioner Daniel Therrien wrote.  “It is completely unacceptable for millions of people who will never be implicated in any crime to find themselves continually in a police lineup. Yet the company continues to claim its purposes were appropriate, citing the requirement under federal privacy law that its business needs be balanced against privacy rights. Parliamentarians reviewing [the proposed] Bill C-11 may wish to send a clear message, through that bill, that where there is a conflict between commercial objectives and privacy protection, Canadians’ privacy rights should prevail.”

The joint investigation by the Office of the Privacy Commissioner of Canada, the Commission d’accès à l’information du Québec, the Office of the Information and Privacy Commissioner for British Columbia and the Office of the Information and Privacy Commissioner of Alberta concluded that the New-York-based technology company violated federal and provincial privacy laws.

In a news release, they stated Clearview AI’s technology allowed law enforcement and commercial organizations to match photographs of unknown people against the company’s databank of more than three billion images., These images included adults and children for investigation purposes without their knowledge or consent. Commissioners found that this creates the risk of significant harm to individuals, the vast majority of whom have never been and will never be implicated in a crime.

In addition, the report noted that Clearview collected, used and disclosed Canadians’ personal information for inappropriate purposes, which cannot be rendered appropriate via consent.

When presented with the investigative findings, Clearview argued that:

The four commissioners rejected these arguments.

“They were particularly concerned that the organization did not recognize that the mass collection of biometric information from billions of people, without express consent, violated the reasonable expectation of privacy of individuals and that the company was of the view that its business interests outweighed privacy rights,” the Feb. 3 news release said.

Clearview AI and the RCMP

On the applicability of Canadian laws, they noted that Clearview collected the images of Canadians and actively marketed its services to law enforcement agencies in Canada. The RCMP became a paying customer and a total of 48 accounts were created for law enforcement and other organizations across the country.

The privacy authorities recommended that Clearview stop offering its facial recognition services to Canadian clients; stop collecting images of individuals in Canada; and delete all previously collected images and biometric facial arrays of individuals in Canada.

Shortly after the investigation began, Clearview agreed to stop providing its services in Canada. It stopped offering trial accounts to Canadian organizations and discontinued services to its only remaining Canadian subscriber, the RCMP, in July 2020.

However, the commissioners say Clearview disagreed with the findings of the investigation and “did not demonstrate a willingness to follow the other recommendations.

“Should Clearview maintain its refusal, the four authorities will pursue other actions available under their respective Acts to bring Clearview into compliance with Canadian laws,” the commissioners concluded.

The full report notes that in disagreeing with the findings, Clearview alleged an absence of harm to individuals connected to its activities. “In our view, Clearview’s position fails to acknowledge: (i) the myriad of instances where false, or misapplied matches could result in reputational damage, and (ii) more fundamentally, the affront to individuals’ privacy rights and broad-based harm inflicted on all members of society, who find themselves under continual mass surveillance by Clearview based on its indiscriminate scraping and processing of their facial images.”

Meanwhile, the Office of the Privacy Commissioner of Canada’s investigation into the RCMP’s use of Clearview AI’s facial recognition technology continues.

Separately, the federal commissioner’s office, along with provincial counterparts, are developing guidance for law enforcement agencies on the use of facial recognition technologies. Guidelines for consultation are expected to be released in the spring.

Despite opposition from privacy advocates to facial recognition, privacy commissioners around the world aren’t opposed to the idea of the technology. In October 2020, global privacy commissioners passed a resolution acknowledging it can benefit security and public safety. However, the resolution also asserts that facial recognition can erode data protection, privacy and human rights because it is highly intrusive. It also enables widespread surveillance that can produce inaccurate results. The resolution says organizations should ensure that facial recognition technology cannot be used where the purpose can reasonably be achieved by less intrusive means.

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