On Monday, Clearview AI appeared before the Court of Appeal of England and Wales to argue that a company with a database of roughly 50 billion images does not, in the legal sense, monitor anyone. The case concerns the 7.5 million pound fine and enforcement notice the UK Information Commissioner's Office issued in 2022, which ordered the company to stop collecting the personal data of UK residents and to delete what it already holds. Clearview has been contesting the regulator's authority ever since. One admires the persistence, if not the premise.
The Argument From Definitions
Clearview's position is that UK data protection law reaches only companies engaged in behavioral monitoring, and that its facial-recognition technology does not itself analyze anyone's behavior. A lawyer for the company told the judges as much. The software matches faces; what happens afterward is a matter for the customer. Clearview says 190 of its 236 clients are police, federal investigative or military bodies, with the remainder in law enforcement or national security. The customers, in other words, do the monitoring. Clearview merely supplies the means, the data and the index.
The Regulator Reads the Brochure
The ICO told the court on Tuesday that capturing and organizing images amounts to monitoring in itself, whether or not the software analyzes behavior. It also pointed to Clearview's own promotional materials, which suggest the company can provide intelligence about human activities and behavioral trends. Sources confirm that marketing departments are not, as a rule, placed under oath, and that this is the sort of thing a marketing department tends to forget until a regulator reads it aloud.
The Existential Remedy
Clearview says the deletion order would force it out of business entirely, a consequence that data deletion orders do tend to have when the product is the data. The path to this courtroom has not been short. A first-tier tribunal found in October 2023 that UK law did not apply to the company at all; the Upper Tribunal reversed that a year later. The hearing runs through at least Wednesday, with Privacy International also scheduled to be heard, and no judgment date has been announced. And yet, as if the question of what counts as watching were not enough to occupy three days of appellate time, the Privacy Community will note that the company has never been shy about what it does with the images, only about what to call it.
Sources: Biometric Update — Clearview AI spars with UK ICO over facial recognition as monitoring · Resultsense — Clearview takes its fight over the ICO's UK fine to Court of Appeal
