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Clearview AI says the First Amendment lets it scrape the internet. Lawyers disagree


Earlier court cases have permitted data scraping. But never for facial recognition.

The First Amendment protects a lot of things, even flipping off a cop or burning the flag. But it may not give a controversial facial recognition company the right to keep scraping data from the internet for a database of more than 3 billion images. 

On a CBS This Morning segment on Wednesday, Clearview AI CEO Hoan Ton-That said his company had a First Amendment right to access public data, including photos from YouTube, Facebook, Twitter, LinkedIn and Venmo. It uses those photos for a controversial database primarily used by law enforcement. (Disclosure: CBS News and CNET are owned by the same parent company.)

Facebook, Twitter and Google have already sent cease-and-desist letters to Clearview, saying data scraping violates their terms of services. Clearview's legal counsel has been in touch with the companies, Ton-That told CBS, defending the practice with the first item in the Bill of Rights.

"There is also a First Amendment right to public information," Ton-That said in the interview. "The way we have built our system is to only take publicly available information and index it that way." 

Privacy and technology lawyers are finding plenty of holes in the company's argument. They say the First Amendment protections apply only in cases where the government interferes with someone's speech. An activity protected by the First Amendment could also run afoul of another law, they say. Lastly, the First Amendment argument hasn't worked in previous data collection cases, though none of those involved facial recognition.

"I don't really buy it," said Tiffany C. Li, a privacy attorney and visiting professor at Boston University School of Law teaching technology law. "It's really frightening if we get into a world where someone can say, 'the First Amendment allows me to violate everyone's privacy.'" 

Clearview didn't respond to a request for comment.