It is unknown whether any Arizona law enforcement agencies are using the new facial recognition technology sold by a company called Clearview AI, but since over 2200 entities are using this technology, it is highly likely it is being used here in Arizona.

In previous blogs, I have discussed how facial recognition technology is used as an investigative tool, but until recently, this technology was used by law enforcement to match surveillance video to other photos taken by or submitted to federal and state governments, such as driver’s license photos, mug shots, and immigration records. But, the New York Times recently ran a story on a new technology that can be used to compare suspect photos against a database of several billion photos gleaned from social media and other publicly available sources. The company, Clearview AI, has sold or given free trials of this technology not only to law enforcement agencies, but also private companies such as Macy’s and Walmart, as well as universities.

The Clearview face database also contains photos that have been deleted and from accounts that have been disabled, because once the photos were “scraped” from the internet, the photo is there to stay in Clearview’s database.

Legal Issues with Clearview AI’s App

Right now, there are really no laws that address what circumstances would justify law enforcement’s or a private security agency’s decision to run someone’s face through this database. There are certainly complex privacy issues implicated if, for example, all routine traffic stops included a facial scan of everyone in the car. While this technology is primarily used as an investigative tool for solving crimes and not as direct evidence, it is not hard to imagine other uses for the technology such as immigration enforcement (ICE is already using the technology) or employer background checks. Clearview admits to providing trial accounts to potential private investors and the technology is being used more broadly in other countries.

Since this story broke, some government officials and social media platforms have been scrambling to find ways to limit Clearview’s ability to operate so freely. Google, You Tube, Microsoft, and Twitter sent cease and desist letters to Clearview and multiple parties are filing lawsuits against Clearview for violating the terms of use for their sites. Apple recently disabled Clearview’s ability to further distribute their app to IOS devices, but the app can still be downloaded to Android devices. There are also potential violations of federal privacy laws protecting the privacy of children’s images online.

Legal Challenges to the Accuracy of Facial Recognition Technology Might Become More Difficult

What truly makes Clearview’s app different from prior technologies is not only the ease of accessibility, but also the accuracy it claims, compared to previously available facial recognition tools. One journalist reported that during a law enforcement demonstration, the app located seven photos of him, even when he covered his mouth and nose with his hands. Previous technologies would often return tons of “matches” that were not actually the suspect, and could only accurately match pictures taken from the front, and were therefore highly criticized for their use in investigations and not typically allowed to be used as evidence. But, Clearview’s app can reportedly, quite accurately, match faces wearing glasses, hats, from a side profile, or only a partial picture and several trial users report that the results of searches were almost 100 percent accurate. Therefore, it is not far-fetched to envision a time in the near future when facial recognition results could be given the same evidentiary weight as fingerprints and DNA.