Facial Recognition: Heading in Two Directions at Once?

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Privacy, Technology and Perspective

Facial Recognition: Heading in Two Directions at Once?  In the facial recognition world, two unrelated but remarkable events have happened recently. 

One is that the New York Times has publicized the emergence of a new facial recognition business called “PimEyes.” PimEyes’ facial search engine searches the Internet for every place a user’s picture appears. 

The other is that Clearview AI – the owner of a database it contains over 20 billion personal photos – has settled a 2020 lawsuit brought by the ACLU under Illinois’ robust Biometric Information Privacy Act (“BIPA”) by agreeing to certain restrictions. 

PimEyes:  The Times reports that “PimEyes” allows users to find photos of themselves from all over the Internet.  A paying user first uploads a picture of themselves, and reps and warrants that it is their picture and that they have full authority to do the search. Using facial measurements and algorithms, PimEyes then finds and returns other photos of the user – perhaps, in the process, dredging up unfortunate memories which the user may have hoped were long forgotten and gone from their lives.

The Times describes PimEyes as “alarmingly accurate.” (Anecdotally, PimEyes does seem to harvest a surprising number of true matches, though it also seems to identify some vague doppelgangers.)

You can read more about PimEyes here:

https://www.nytimes.com/2022/05/26/technology/pimeyes-facial-recognition-search.html

Clearview AI settlement:  The Times also reports that subject to Illinois state court approval, Clearview AI has agreed to pay $250,000 in attorneys’ fees and not to “sell” (license?) use of its database in Illinois for five (5) years, except to financial institutions which are expressly carved out of BIPA. When it does resume sales to law enforcement agencies, Clearview AI will take stricter steps to control customers’ “trial” uses, such as making sure individual police officers have their supervisors’ approval.

However, Clearview AI can continue to “sell” (license?) its software to entities – public or private – to use on their own databases. 

You can read more about the Clearview AI settlement here:

https://www.nytimes.com/2022/05/09/technology/clearview-ai-suit.html

What do these mean? On the surface, PimEyes’ new, widely available facial engine seems like an expansive new direction for facial recognition.  In contrast, removing Clearview AI’s database from use in Illinois until 2027 seems like a strong blow in favor of privacy rights. So: is facial recognition moving in two directions at once? 

 Our view:  We doubt it.  PimEyes strikes us as a fun new parlor game, but it carries serious privacy risk: a user’s rep and warranty seem to be the only deterrents to using someone else’s picture to uncover pictures of that someone else, and reps and warranties won’t readily stop someone willing to lie about their own present in order to find another’s past.  And on a closer look the Clearview AI settlement does not seem all that strong: its monetary payment pales beside the $550 million Facebook paid in early 2020 for BIPA violations.  Meanwhile, Clearview AI’s search engine is still available.  Contrast the recent action against Clearview AI by the Italian Supervisory Authority (ISA), which we covered in our post, entitled “Clearview AI is “Persona non Grata,” available at the following link:

https://www.hoschmorris.com/privacy-plus-news/clearview-ai-persona-non-grata  

There, the ISA ordered Clearview AI to stop collecting or processing personal data in Italy altogether, and to erase the Italian personal data it has. 

In the United States, we expect that meaningful directional change regarding the lawful use of facial recognition software will have to come from public enforcement.  After all, Illinois is a vast market but not a direction-determinative one, at least for companies of this size.

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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.