A Vermont judge has cleared the way for the state to continue its lawsuit against a secretive facial recognition company for deceptive practices, rejecting arguments that the case should be tossed on grounds including constitutional freedom of speech protections.
The judge also denied another argument from the firm, Clearview AI to invoke a federal law that provides immunity to interactive computer services and search engines, such as Google and others, from legal liability.
Both contentions in the Vermont litigation are being raised by the company to challenge similar lawsuits against its practices across the country in other state and federal courts.
Chittenden County Judge Helen Toor, in a decision this week, is believed to have issued the first ruling shooting down claims of First Amendment protections by the firm against such allegations as making deceptive statements about the ability of people to remove themselves from its database.
“The State does not justify its action against Clearview based on the content of Clearview’s speech, for example, the order of its search results or whether the photographs displayed are offensive,” Toor wrote in the 38-page decision.
“Instead,” the judge wrote, “its purpose is based purely on the alleged function of the Clearview app in allowing users to easily identify Vermonters through photographs obtained unfairly and without consent, thereby resulting in privacy invasions and unwarranted surveillance.”
Vermont Assistant Attorney General Ryan Kriger said Friday that he believed the ruling could affect other cases against Clearview outside the state.
“The fact this court heard the First Amendment arguments and rejected them, I think will be significant,” he said. “They are placing a lot of emphasis on that argument,” Kriger added of Clearview.
The New York Times reported last month that the company has hired noted First Amendment attorney Floyd Abrams as part of its defense team to contest allegations it violated privacy laws by selling its data to law enforcement.
Kriger cautioned that the decision has been made at the trial court level, and not by a higher authority such as the Vermont Supreme Court.
Tristram Coffin, a former U.S. attorney for Vermont representing Clearview in the state case, could not immediately be reached Friday for comment.
The Vermont Attorney General’s Office filed a multi-count lawsuit earlier this year in Chittenden County Superior Court in Burlington against Clearview over its facial recognition tool.
That tool has allowed the company to build up an extensive database of billions of photos of private people, including Vermonters, gathered without their consent from the internet as well as social media, drawing the ire of many including privacy advocates.
The lawsuit alleges that the company illegally collected the photos of Vermont residents, including children, and then sold the information to law enforcement agencies, individuals and private businesses.
In bringing the lawsuit, the Attorney General’s Office said it is not aware of any law enforcement in Vermont using Clearview AI.
But, elsewhere law enforcement and other private parties use Clearview’s identification tool and database. Media reports have cited U.S. Immigation and Customs Enforcement, among those entities.
Clearview, as part of its motion to dismiss the case on First Amendment grounds, also contended that the action brought by the state violated its right to access public data on the web.
Toor, in her ruling, wrote that she was not buying that part of the argument, either.
“The court finds this theory unpersuasive. None of the relief sought by the State would prohibit Clearview from accessing and viewing any particular website,” the judge wrote.
“Instead,” Toor added, “the claims derive from what Clearview does with that information, and the theory that Clearview’s actions constitute unfair trade practices.”
In addition, Clearview argued that under the federal Communications Decency Act it is protected from claims brought in the state’s legal action since it did not create the online content, in this case the photos.
And the company contended that it was being singled out since the state was not going after other search engines.
The judge, in the ruling, offered a different take from Clearview that it was being picked on.
“Instead,” Toor wrote, ”the claims here attempt to hold Clearview ‘accountable for its own unfair or deceptive acts or practices,’ such as screen-scraping photographs without the owners’ consent and in violation of the source’s terms of service.”
Toor did side with Clearview in agreeing to throw out one part of the lawsuit, a claim that the company had violated the state’s Fraudulent Acquisition of Data Law, which went into effect last year.
“Because the State has not sufficiently alleged that the data was acquired by ‘fraudulent means,’ dismissal of Count III is appropriate,” the judge wrote.
Kriger, of the Vermont Attorney Attorney General’s Office, said Friday that the state will be moving forward in its case against Clearview on the rest of the claims.
He added, ”We’re going to continue with the urgency that we assigned this case and we’ll try to get a good result for Vermonters.”
Read the story on VTDigger here: Judge deals blow to facial recognition firm, allows claims of ‘deception’ to proceed.