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Uncovered: Facial Recognition and a Systemic Effects Approach to First Amendment Coverage

Cite as: 6 Geo. L. Tech. Rev. 248 (2022)

As governments and private companies alike increasingly invest in surveillance tools such as facial recognition technology (FRT), the specter of a much more pervasive surveillance state looms. Clearview AI—a startup that scrapes publicly available photos on the Internet and sells a facial recognition search engine to law enforcement—has in turn faced numerous lawsuits alleging violations of privacy laws. The company has responded that those privacy laws are unconstitutional as applied to its FRT computer application because its information processing activities are protected First Amendment speech. Although that defense has been unsuccessful so far, a new, important question has arisen: is the activity of measuring a person’s facial biometrics protected speech under the First Amendment? Stated differently, should courts apply constitutional scrutiny to laws that seek to regulate the collection and use of biometric information? The debate comes at an inflection point. While law enforcement adopts these technologies at scale, states are increasingly regulating FRT and there is momentum to do the same at the federal level.

This Note contends that, as applied to FRT in the police context, laws regulating the collection and use of facial biometric information do not raise First Amendment concerns because First Amendment coverage does not extend to facial measurement in service of police surveillance. Using Clearview AI as a case study and building upon the literature pertaining to First Amendment coverage, this Note argues that “faceprinting” of the sort Clearview engages in is not protected First Amendment activity because it is anathema to core First Amendment values and undermines the population’s ability to engage in free expression and association.

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Lucas Evans

Director of Technology and Solicitations Editor, Georgetown Law Technology Review; Georgetown Law, J.D. expected 2022; Belmont University, B.B.A. 2019.