David Brody, counsel and senior fellow for privacy and technology at the nonprofit Lawyers’ Committee for Civil Rights Under Law, said the move could be seen as an attempt to deter the advocacy groups, and journalists, from future investigations.
“To use legal process to try to silence critics — silence people that are just trying to get transparency about how our criminal justice system is operating and what tools are being used by law enforcement agencies — that’s pretty problematic,” Brody said.
Open the Government and MuckRock shared their research about police use of surveillance — including Clearview’s technology — with the New York Times, and the paper published several reports last year detailing the startup’s work with law enforcement.
Authorities have been using Clearview’s software for several years to try to match images in government databases and surveillance footage with billions of personal photos posted to the internet. Privacy, human rights and civil liberties advocates have long raised alarm about the technology as both intrusive and biased. It has been shown to disproportionately misidentify women and people of color.
Clearview did not immediately respond to a request for comment.
The company is involved in a consumer privacy case in Illinois district court that does not appear to involve Open the Government, Martinez or Lucy Parsons Labs. It was not clear if the company had requested the documents to be used as evidence in that suit.
Brody said it can be a taxing and expensive process to contest a subpoena — and that can be especially troublesome for nonprofits and smaller advocacy organizations without the legal or financial might to fight it off. Lisa Rosenberg, executive director of Open the Government, argued it’s a way for Clearview to threaten critics.
“They presumably have massive amounts of resources at their disposal; we do not,” Rosenberg said in an interview, adding that “nonprofits could potentially be bullied by Clearview.”
Open the Government has secured pro bono legal representation from the firm Ballard Spahr. It was not immediately clear whether other advocates or civil society groups that have been outspoken about Clearview were targeted with subpoenas.
Albert Fox Cahn, founder and executive director of the Surveillance Technology Oversight Project, a nonprofit that litigates and advocates against government mass surveillance, argued the subpoenas could intimidate or undermine watchdog groups like his.
“There is absolutely no justification for a vendor to be able to target civil society groups; we know just how chilling that can be,” he said.
Rosenberg also called the subpoenas “a backhanded way” of targeting journalists’ sources. “If a court did make us turn over those records, that precedent would be terrifying for First Amendment reasons,” she said. Journalists “would have to be worried that you could maybe protect your sources, but your sources couldn’t protect themselves.”
Clearview Founder Hoan Ton-That has stood by his “search engine for faces,” emphasizing that Clearview uses only publicly available photos and arguing that there is a First Amendment right to public information.
Public backlash to the technology has prompted tech giants like Microsoft and IBM to pull out of the market for good, and Amazon has halted police use of its Rekognition product indefinitely to give Congress time to implement safeguards.
But federal laws governing the technology are far off, and momentum on the issue seen last Congress has largely petered out. And even as action to regulate or ban the technology grows at the state and local levels, an August report from the Government Accountability Office shows that almost half of federal agencies plan to expand their use of facial recognition in the next two years.
At the same time, Clearview is building up its presence in Washington. The company hired its first lobbyists earlier this year, bringing on Klein/Johnson Group, which was started by aides to Senate Majority Leader Chuck Schumer and Sen. John Cornyn (R-Texas) to provide “education” about facial recognition software, according to a disclosure filing.