Facial Recognition Start-Up Mounts a First Amendment Defense in Privacy Suits

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Floyd Abrams, one of the most prominent First Amendment lawyers in the country, has a new client: the facial recognition company Clearview AI.

Litigation against the start-up “has the potential of leading to a major decision about the interrelationship between privacy claims and First Amendment defenses in the 21st century,” Mr. Abrams said in a phone interview. He said the underlying legal questions could one day reach the Supreme Court.

Clearview AI has scraped billions of photos from the internet, including from platforms like LinkedIn and Instagram, and sells access to the resulting database to law enforcement agencies. When an officer uploads a photo or a video image containing a person’s face, the app tries to match the likeness and provides other photos of that person that can be found online.

After The New York Times revealed the existence of Clearview AI in January, lawsuits were filed against the company in Illinois, California, Virginia and New York, alleging violations of privacy laws and seeking class-action status. Most of the suits have been transferred to New York’s Southern District, under Judge Colleen McMahon. Mr. Abrams plans to file his notice to appear in those cases this week.

The company also faces two lawsuits filed in state courts: one from Vermont’s attorney general and one from the American Civil Liberties Union in Illinois, where a statute forbids the corporate use of residents’ faceprints without explicit consent.

Clearview AI is also represented by Tor Ekeland, a lawyer known for representing hackers, and Lee Wolosky of Jenner & Block. In addition to Mr. Abrams’s plans to assert a free-speech right to disseminate publicly available photos, the company plans to challenge the applicability of the Illinois law to a company based in New York.

Mr. Abrams’s long career working on free-speech cases started when he represented The Times in the 1971 Pentagon Papers case, arguing that the paper had the right to publish classified documents. He has since argued 13 cases before the Supreme Court, and is now senior counsel at Cahill Gordon & Reindel.

“Floyd Abrams is without peer as the nation’s pre-eminent First Amendment attorney, and it is clear that there are potentially groundbreaking First Amendment issues relating to the cases involving Clearview AI,” said Lisa Linden, a spokeswoman for the company.

In recent years, Mr. Abrams has sought to protect the speech rights of corporations including Standard & Poor’s and the tobacco company Lorillard. He worked most notably on the Citizens United case, in which the Supreme Court ruled a decade ago that the government can’t restrict how much companies, nonprofits and other associations spend on political ads.

Mr. Abrams said he had not heard of Clearview AI before Richard Schwartz, a company co-founder, called him last month “out of the blue.”

“He described it to me very broadly and asked if I would be interested,” Mr. Abrams said. “I found it really interesting. Here we have 21st-century judges addressing 21st-century technology to see if they’re consistent with an 18th-century document.”

Mr. Abrams said that in his view, while the technology involved was novel, the premise of the cases was a company’s right to create and disseminate information.

“Privacy is an extremely important value,” Mr. Abrams said. “One of the great opinions that one learns in law school is Justice Brandeis saying the right to be let alone was one of the most crucial elements of life in a free society.

“That said,” he continued, “where there is a direct clash between privacy claims and well-established First Amendment norms, what would otherwise be appropriate manners of protecting privacy have to give way before the constitutional limitations imposed by the First Amendment.”

Mr. Abrams pointed to a 2011 case in which the Supreme Court, citing the First Amendment, ruled that Vermont could not prohibit pharmacies from selling information about what drugs a doctor had prescribed.

Mr. Abrams, 84, said he had not been able to see Clearview AI’s app in action, because the pandemic had kept him from meeting with anyone at the company in person and because he didn’t own a smartphone.

“I’m learning the language,” Mr. Abrams said. “I’ve never used the words ‘facial biometric algorithms’ until this phone call.”

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