In 2019,  started licencing facial recognition software to law enforcement agencies in Canada and the United States. In addition to , the . At first, the product seemed promising. Clearview AI’s application helped law enforcement officers track down otherwise unidentifiable criminals. However, Privacy Commissioners for , , and immediately launched a joint investigation into the company when news reports began to circulate raising questions and concerns about Clearview AI’s facial recognition technology.

The problem with Clearview AI’s application is that it requires a large biometric dataset in order to operate. To obtain biometric information, Clearview AI has scraped the Internet and collected over 3.3 billion images of faces and associated data from publicly accessible online sources, including Facebook, YouTube and Instagram. Clearview AI uses facial recognition software to create a biometric array for each of its images. When a user uploads a photograph, Clearview AI assesses its biometric data and retrieves images with corresponding information from its database. Each image in its database contains metadata and a link to its original source, so users can cross-reference and identify people using images found online.

Now, almost a year since news first broke about Clearview AI, Canada’s Privacy Commissioners have finally concluded their investigation into the company. In a  issued on February 2, 2021, the Commissioners collectively condemned Clearview AI for collecting, using and disclosing personal information without the requisite consent. Subject to Canadian privacy laws governing private sector entities, Clearview AI’s activities contravene principle 4.3 of Schedule 1, as well as section 6.1 of , section 7(1) of , sections 6-8 of , and sections 6 and 12-14 of .��

. However, many are now calling on the Trudeau government to ban federal law enforcement and intelligence agencies from using facial recognition for surveillance purposes entirely. Last July, individuals and organizations representing privacy, human rights and civil liberty advocates penned an , calling on the federal government to “[e]stablish clear and transparent policies and laws regulating the use of facial recognition in Canada, including reforms to the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Privacy Act.” 

Law enforcement agencies can now identify suspects within a matter of seconds. With facial recognition, all it takes is a single photograph to obtain a wealth of personal information about an individual. However, everything comes at a cost, and utilizing facial recognition for law enforcement purposes is no exception. If I have learned anything from Michel Foucault, it is that collective security should not come at the expense of individual autonomy. Do you disagree?

Lamont Abramczyk is a JD Candidate at Osgoode Hall Law School. He is the Deputy Director of the Osgoode Art Law Society and an IP Osgoode Innovation Clinic Fellow.

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Facial recognition technology works by creating a of a person’s face by measuring precise characteristics, such as the distance between the eyes. The template is then compared against other templates already stored in the database to find a possible match. According to, putting on a mask blocks access to the part of our biometrics that most uniquely sets us apart from others – the central portion of the face, just above the brow line down to the chin.

Still, this relief for privacy advocates may only be momentary, as companies are coming up with solutions to identify individuals even with masks. For example, researchers published to help artificial intelligence adapt. The dataset was created by scouring Instagram using the tag “mask” for selfies shared publicly. The creators behind the dataset assert that since the selfies were public, they did not need to to use those photos.

This is not the first time a facial recognition company has asserted that building a database using publicly available photos does not violate privacy rights. , I wrote about the privacy implications of Toronto Police using Clearview AI – a facial recognition technology application that has scraped over 3 billion images of people from social media websites such as Facebook, Twitter, and Venmo. By uploading a photo of a person into the database, you can find other identifying information such as their name, address, and occupation.

As a result of a of , Clearview AI is facing a class-action lawsuit. Residents in Illinois allege the company violated the legislation that requires entities to obtain consent before collecting and storing personal information. BIPA has been somewhat successful in protecting consumer’s facial and biometric data. In January of this year, Facebook agreed to pay to settle a class-action lawsuit over its use of facial recognition technology. Claimants in Illinois alleged that Facebook collected facial recognition data on images for its feature without providing adequate disclosure.

In response to the class action filed in Illinois, and perhaps because of Facebook’s settlement, Clearview AI asserted termination of its relations with non-law enforcement entities in a . However, at the heart of the discussion around Clearview AI, and other facial recognition technology, is the idea that images that are publicly available are up for grabs.

When a person makes their picture public, do they retain some expectation of privacy? Or, do they forego all expectations of privacy? Should we take into consideration the intention behind allowing the public to view a picture? suggest that while people may not expect complete privacy, they do have certain expectations as to how their images may be used. They may not consent to their picture aiding in the development of a database used by local law enforcement or government surveillance in countries known for committing .

Realistically, in today’s society, it isn’t easy to make every picture of your face private. Even though you can make your account private, having your profile picture visible to the general public makes it easier to identify friends or acquaintances. Building a brand, either of an individual or a company, necessitates strategically sharing information using social media.

From a legal perspective, the Canadian courts have not yet had to answer whether an individual foregoes every right to privacy once they make a picture publicly available. In a , it was determined that an individual does not have a reasonable expectation of privacy to information they submit when applying for a driver’s licence. In that specific case, the police had used facial recognition technology on the Ministry of Transportation of Ontario database to find an individual they believed to be the owner of fraudulent licenses.

Last year, the Supreme Court of Canada clarified in the case of that privacy is “not an all or nothing” right. Simply because an individual is in public does not automatically negate all expectations of privacy. It is possible that, in the future, a similar perspective will guide the analysis of online pictures.

So, what does this mean for the everyday person running their errands in a mask? Do they need to worry about the implications of these companies collecting images if the results are inaccurate? The answer is likely, yes. The lack of accuracy of facial recognition technology is , yet different sectors of society rely on the tool. The testing of algorithms for people wearing masks is , and companies are not likely to stop trying to adapt. So, for the time being, you may want to keep your mask selfie on private or not share it at all.

Nikita Munjal is an IPilogue Editor, Clinic Fellow with the Innovation Clinic, and a JD/MBA Candidate at Osgoode Hall Law School.

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