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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
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< | Facial Recognition and the Self-Sabotaging First Amendment |
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> | Making Citizens Free: Privacy and the First Amendment |
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< | -- By JohnClayton - 20 Nov 2020 |
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> | -- By JohnClayton - 1 Feb 2020 |
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< | The First Amendment cannot sabotage itself. And yet that, in a sense, is what Clearview AI is asking a court to hold. Faced with a lawsuit for violating an Illinois privacy law, the maker of a controversial facial recognition app now claims the First Amendment safeguards it from all but the most narrowly tailored regulations. Clearview (so it argues) is no different than a news publisher: It gathers, synthesizes, and delivers information to its subscribers. Never mind that to fuel its platform, Clearview scraped without consent a purported three billion images from across the web—creating biometric faceprints of millions of unwitting individuals. But because the First Amendment protects the “the creation and dissemination of information,” Clearview’s activities cannot be proscribed. |
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> | The argument goes like this: Company X is analogous to a news publisher. It gathers information, distills its findings, and delivers insights to its customers. Never mind that the “information” it collects consists of three billion human images scraped from the web; or that the “insights” it creates are biometric faceprints of millions of unconsenting individuals. Because the First Amendment protects the “the creation and dissemination of information,” Company X’s facial recognition services must be immune from all but the most narrowly tailored regulations. |
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< | This position is, I believe, untenable: the First Amendment cannot obliterate the privacy that the freedom of speech depends upon. But it is unsurprising that Clearview would make such a contention. The First Amendment has become a deregulatory tool, invoked to strike down laws regulating everything from traffic signs to the collection of health data. It will almost certainly loom over any comprehensive attempt to police the tech platforms; indeed, ISPs are already wielding the First Amendment against state privacy laws. Clearview’s case is thus both representative and uniquely disturbing. Few technologies are as overtly privacy-destroying as facial recognition. If free speech requires free thought, and free thought requires privacy, then it follows that Clearview’s argument cannot prevail. |
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> | The lawsuit by Company X—real name, Clearview AI—challenging an Illinois’s privacy statute exposes a tension in First Amendment law. The amendment offers a bulwark against state suppression of political, social, and scientific knowledge. But the freedom of speech also depends upon privacy: One cannot think or act autonomously if they are being watched. Tech companies have increasingly wielded the First Amendment as a sword against laws that threaten their efforts to learn about us. The result is a seeming paradox, with the amendment threatening privacy measures necessary to preserve its vitality. |
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< | Free Speech and the End of Anonymity |
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> | This paradox can be reconciled. I proceed from a basic premise: the state has a compelling interest in enacting privacy laws that help create and preserve an environment where free thought and inquiry—the preconditions of self-governance—can flourish. Neutral and narrowly tailored regulations meant to tame our ecological privacy disaster do not run afoul of the First Amendment. |
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< | Over 130 years ago, Louis Brandeis and Sam Warren wrote of the right to privacy as “part of the more general right to the immunity of the person.” The “right to be left alone,” in their view, anteceded one’s ability to think and act autonomously. The freedom of speech, in turn, flows from this ability to think for ourselves. “If we did not regard the autonomy of the individual mind as important,” Seana Valentine Shiffrin writes, “it is hard to see why we would value its expression or outputs.” The instrumentalist value of speech in advancing self-government—long the centerpiece of First Amendment theory—correlates with the freedom of the minds from which the speech originates. Privacy, autonomy and the freedom of speech are inescapably linked. |
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> | The Scope of “Speech” |
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< | The exigencies of the data economy jeopardize our privacy and autonomy. Facial recognition tools, in particular, cast doubt upon the possibility of anonymity. Hundreds of police departments across the United States have rushed to license Clearview’s app. And Clearview’s code reportedly allows it to be paired with augmented reality glasses that could identify individuals in real time. The ability to be alone in public may soon be a relic. |
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> | Start with an acknowledgment: collecting and deciphering human behavioral insights falls within the ambit of the First Amendment. This is true of Clearview’s faceprints; or academic research; or online browsing histories sold by data brokers. Nor is such expansive coverage necessarily a bad thing. Modes of knowledge creation constantly evolve—defining the precise borders of the “freedom of speech” is impossible. Data scraping feels icky when it maps our faces, but journalists also use such methods to study Facebook’s news feed. A default presumption in favor of protecting new tools of expression or learning makes sense. |
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< | The obliteration of physical anonymity imperils free speech and thought. Facial recognition has increasingly been deployed to identify protesters, underscoring how these tools may deter core expressive and associational conduct. Online expression will also be chilled if one’s photos can be scraped by any developer for biometric indexing. Technology may offer some reprieve. New software can imperceptibly change images to make the individuals in them unrecognizable to machine-learning programs. But this does little to address the three billion photos already in Clearview’s database. |
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> | But this only begins the First Amendment inquiry. What recognized government interests can privacy laws pursue? And what methods are permissible to achieve those goals? |
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< | Despite all this—the appropriation of user photos without permission; the purposeful erasure of anonymity in pursuit of profit—it is Clearview, not those swept into its database, that seeks the First Amendment’s shelter. |
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> | Free Speech Environmentalism |
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< | Clearing a Path for Political Change |
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> | Louis Brandeis wrote in a famous First Amendment opinion that the “final end of the state was to make men free to develop their faculties.” Brandeis, a noted privacy advocate, frequently voted to strike government speech regulations. But he also worried about private power’s potential to stunt citizens’ intellectual and civic development. |
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< | Legislators have increasingly acted to restrict facial-recognition technologies. Numerous cities have banned their use. A Senate bill would prohibit the use of biometric surveillance by the federal government and withhold grants from states that use facial recognition. Other laws, like the Illinois statute at issue in Clearview’s case, prohibit the private use of biometric data without consent—potentially cutting off an essential data source for developers. |
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> | To borrow language from Brandeis, I believe that in pursuing privacy regulations, the government has a compelling interest in helping to make citizens free by creating the conditions where speech and thought can flourish. This includes shielding citizens from the most intrusive means of privacy-destroying private surveillance. Facial recognition databases are one example. The larger ecological disaster of online privacy has spawned externalities—invasive advertisements, data leaks, the atrophying of human attention. These surveillance byproducts imperil free thought and threaten democracy. Successful self-governance depends on citizens’ ability to think, learn, and make decisions based on that thinking and learning. The freedom of speech, in other words, is both an end of government and a means. |
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< | The First Amendment should not sabotage such privacy laws, merely because regulated corporate actors trade in something that looks like “speech.” I do not argue that Clearview’s app—or other facial recognition tools, or tech platform algorithms in general—are beyond the scope of the First Amendment. The act of gathering and creating information, be it via a news article or a faceprint, would seem to fit under the broad umbrella of speech. So does Clearview’s program code; indeed, a contrary conclusion would expose privacy-enhancing tools like encryption code to intrusive government regulations. |
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> | Such an environmental government interest in culling data pollution is distinct from the individualized privacy interests usually advanced—for example, that citizens may prevent misuse of their data. This transactional approach implies that consent can cure privacy invasions. But the harm of data collection can rarely be so cabined; track one person’s phone, and you can learn who they call or email or visit. |
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< | First Amendment coverage, however, does not equate to immunity from regulation. Courts need not restrict the amendment’s scope or necessarily construct new doctrinal tests (beyond the strict or intermediate scrutiny formulas) to prevent the First Amendment from destroying the privacy its continued vitality requires. Rather, my critique is normative. In considering current and future challenges to privacy laws like Illinois’s, courts cannot blind themselves to the fundamental relationship between secrecy, anonymity, and free speech. They can follow the lead of the Supreme Court, which has championed anonymity in political speech a “shield from … tyranny” that “exemplifies the purpose behind the Bill of Rights.” |
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> | Law isn’t the only available remedy. Technologies like email encryption can help individuals better protect their data. But addressing data pollution on a societal scale requires decisive, collective action. |
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< | In a case like Clearview’s, then, the question backgrounding any analysis must be this: Does the private company’s “speech” imperil the foundational principles—autonomy and privacy—that the First Amendment sits atop? If the answer is yes, then courts must uphold any reasonable law meant to protect citizens against the encroachment of private power. |
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> | Stemming Data Pollution |
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< | Conclusion: Beyond Facial Recognition |
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> | Certainly there are limits to what means the government may employ to pursue the speech environment necessary to protect the freedom of thought. Privacy laws cannot target “core” political speech. Nor can they single out viewpoints or speakers. Commercial speech—that is, uses of data for purely economic gain— seem a more attractive target for regulation. But tech companies are not alone in exploiting our data. An especially popular facial recognition photo data set was created by university researchers. |
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< | The dilemma of the self-sabotaging First Amendment is not limited to facial recognition. Any law that targets how tech platforms share our data will likely encounter similar challenges. Ditto for attempts to regulate how social media algorithms exploit our attention and chip away at our ability to think freely. To create an internet that nurtures human thought, we must tame an increasingly inegalitarian First Amendment. We can start by getting back to First Amendment first principles: that is, understanding that the freedom of speech that cultivates democracy and individual flourishing cannot exist without the freedom of thought. And the freedom of thought cannot exist without privacy. |
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> | I argue, then, that there are some private data collection practices that so injure privacy that they can be presumptively prohibited without offending the First Amendment—regardless of who the “speaker” is. Smartphone location tracking, for example, allows companies to assemble comprehensive snapshots of where individuals go and who they associate with. And the proliferation of facial recognition technologies threatens to chill expressive and associational conduct in person and online.
Admittedly, blanket bans run the risk of preventing socially beneficial means of knowledge creation that use locational, biometric, or other data. One solution could be to employ an institutional review board model—in which a government agency must review and approve activities that entail the sale or dissemination of certain types of data. The burden would rest on the applicant to show the public benefits of their activities outweigh privacy harms.
It bears repeating that in a scenario where the lone interest in pursuing privacy laws in transactional—that is, protecting one’s right to their data—presumptive bans on these practices likely could not survive narrow tailoring unless they included a safe harbor for securing user consent. Illinois Biometric Privacy Act, which Clearview is challenging, includes just such a provision.
Conclusion
The First Amendment belongs to Clearview as much as any citizen. But notwithstanding the First Amendment’s command to “make no law,” speech can, under some circumstances, be abridged. Determining whether and how speech can be regulated requires, first, an understanding what governmental interests we recognize as compelling. The goal of government to make citizens free—free to think, learn, and associate—demands that the state be allowed to craft neutral, narrowly tailored laws to curb certain privacy-destroying practices. Even when those practices look like “speech.” |
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