Privacy and the First Amendment

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Privacy, Technology and Perspective

Privacy and the First Amendment.  This week, we face what we once thought would be a far-fetched question: Could the First Amendment present a threat to privacy?

Let’s start by putting this in context:

Remember Clearview AI?  It’s the company that amassed one of the largest collections of digital photos ever, trained its facial recognition technology on those photos, then commercialized access to its database and its facial recognition technology by selling such access to law enforcement for a fee.  You can read more about Clearview AI by clicking on the following link to this previous Privacy Plus+ post:

https://www.hoschmorris.com/privacy-plus-news/clear-views-about-clearview-ai

Summarized, Clearview AI has attracted numerous lawsuits for various types of privacy invasions, as well as a class action under the Illinois Biometric Privacy Act.  According to news this week, it has also attracted a new contract with ICE.  You can read more about ICE’s contract with Clearview AI by clicking on the following link:

https://techcrunch.com/2020/08/14/clearview-ai-ice-hsi-contract-2020/

But how does Clearview AI relate to the First Amendment?

This week, the New York Times reported that Clearview AI has added to its defense team the lawyer many consider the “dean” of First Amendment lawyers, Floyd Abrams. (Mr. Abrams has represented the Times for many decades.)  Apparently, Clearview AI plans to argue that its practices of scraping digital photos from other websites, using its facial recognition technology alongside, and then making its database and its technology available to law enforcement, is protected “speech” under the First Amendment.

You can read the New York Times article here:

https://www.nytimes.com/2020/08/11/technology/clearview-floyd-abrams.html?searchResultPosition=2

In his interview with the Times, Mr. Abrams mentioned Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011), indicating he believes it will support Clearview AI’s position. 

Let’s look at Sorrell.  You can read it by clicking here:

https://www.supremecourt.gov/opinions/10pdf/10-779.pdf

In Sorrell, three data miners and a trade association raised a First Amendment challenge to a Vermont law which forbade commerce in “prescriber-identifiable data.”  (Put another way, Vermont had set out to put a stop to “pill mill” prescribers, but in an indirect way, by prohibiting pharmacies, health insurers, and similar entities from selling, transmitting, or using lists identifying prescribing physicians and what drugs they prescribe and how often, and also prohibiting pharmaceutical marketers for using such information for marketing, again absent the prescriber's consent. But, of course, information like this is very valuable to pharma manufacturers.) The Second Circuit struck down the statute, concluding the statute was a content-based restriction that didn’t directly advance legitimate state interests.

The Supreme Court affirmed, 6-3, holding that because the Vermont statute imposed content- and speaker-based restrictions on protected expression, it was subject to a “heightened scrutiny” standard of review which it couldn’t clear.  Justices Breyer, Ginsburg, and Kagan dissented, believing that “heightened scrutiny” was not required in this case, and that the Vermont statute would meet the standard the Court had previously applied in such cases. 

We hesitate to leap to conclusions, or to extrapolate too quickly from one case to the next.  But Clearview AI’s invocation of Sorrells will bear watching and require careful analysis. One of privacy’s foundations is the right to keep one’s personal information private.  The  meaning of “privacy” varies across jurisdictions, but in the United States, generally, “privacy” – or digital privacy at least – means that there are limits on the collection and use of personal information, and requirements for appropriate safeguards, transparency, and assurances with respect to the purposes for which the data is being used, as well as its accuracy and completeness.  Hardly anyone thinks “privacy” means that your personal information will be bought, sold, or scraped off a website without your consent, run against facial recognition technology, then turned over to the government by a company who gets paid to do this.

We realize that the right of free speech is the most fundamental right of a free society, and rightly so.  But it is not wholly unrestrained, and wisely yields (for example) in cases of defamation, fraud, “fire in a crowded theater” and so on.  Sometimes speech must be restrained, in wise and limited ways, in order that our freedoms may be served and enabled in other ways.  We think that there are times when speech should yield to privacy — Our personal information should be reasonably safeguarded, not commercially exploited by strangers with whom we have no relationship. If speech will not yield, there will be no privacy at all.

So as we study Sorrell, let’s remember that when it comes to privacy, wise and proportionate restraint may be among “those wise restraints that make us free.”   

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Hosch & Morris, PLLC is a Dallas-based boutique law firm dedicated to data protection, privacy, the Internet and technology. Open th