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Facial Recognition Start-Up Mounts a First Amendment Defense in Privacy Suits

  • August 11, 2020

Mr. Abrams said he had not heard of Clearview AI before Richard Schwartz, a company co-founder, called him last month “out of the blue.”

“He described it to me very broadly and asked if I would be interested,” Mr. Abrams said. “I found it really interesting. Here we have 21st-century judges addressing 21st-century technology to see if they’re consistent with an 18th-century document.”

Mr. Abrams said that in his view, while the technology involved was novel, the premise of the cases was a company’s right to create and disseminate information.

“Privacy is an extremely important value,” Mr. Abrams said. “One of the great opinions that one learns in law school is Justice Brandeis saying the right to be let alone was one of the most crucial elements of life in a free society.

“That said,” he continued, “where there is a direct clash between privacy claims and well-established First Amendment norms, what would otherwise be appropriate manners of protecting privacy have to give way before the constitutional limitations imposed by the First Amendment.”

Mr. Abrams pointed to a 2011 case in which the Supreme Court, citing the First Amendment, ruled that Vermont could not prohibit pharmacies from selling information about what drugs a doctor had prescribed.

Mr. Abrams, 84, said he had not been able to see Clearview AI’s app in action, because the pandemic had kept him from meeting with anyone at the company in person and because he didn’t own a smartphone.

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