Ottawa Seeks Dismissal of Planned Class Action Against RCMP Over Facial Recognition Tool

Hoan Ton-That, CEO of Clearview AI, demonstrates the company’s facial recognition software with a photo of himself in New York on February 22.Seth Wenig/The Associated Press

The federal government is asking a judge to dismiss a Quebec photographer’s bid for certification in a class action suit, possibly involving millions of people, over the RCMP’s use of a controversial facial recognition tool.

In a Federal Court filing, government lawyers say Ha Vi Doan cannot claim she suffered “harms of any kind” as a result of the national police’s dealings with the US company Clearview AI.

Doan’s proposed class action lawsuit seeks unspecified damages for her and other Canadians whose photos and related information allegedly were part of a massive database compiled by Clearview AI and used under license by Mounties.

Clearview AI’s technology has come under intense scrutiny because it involves collecting a large number of images from various sources with the goal of helping law enforcement, financial institutions and other clients identify people from photographs.

In a February 2021 report, federal privacy commissioner Daniel Therrien and three provincial counterparts said the New York-based company’s scraping of billions of images of people from the internet was a clear violation of the privacy rights of Canadians.

Last June, Therrien found that RCMP broke the law by using Clearview AI software to collect personal information.

The privacy commissioner found that RCMP had carried out 521 searches through paid and trial user accounts with Clearview from October 2019 to July 2020.

“In the absence of evidence that the RCMP conducted these searches and seizures under legal authority, the searches and seizures are allegedly unreasonable,” Doan argues in a court filing.

Therrien concluded that the RCMP had accessed images of Canadians from Clearview AI in the course of their work.

The Mounties have publicly said the force used the company’s technology only in a limited way, primarily to identify, locate and rescue children who were victims of online sexual abuse.

However, the privacy commissioner’s investigation found that the RCMP did not satisfactorily account for the vast majority of searches it conducted.

In the court filing, federal attorneys say the use of Clearview helped the RCMP identify and locate three child victims. Other uses included searching for a wanted fugitive and testing the app with images of police officers, doctored images of an American celebrity, or media images of missing persons.

Clearview AI ceased offering its services in Canada on July 6, 2020.

Doan’s proposed class action says RCMP became a client of Clearview AI even though the company’s services involved a “large-scale invasion of the privacy of Canadian residents and citizens” as well as a violation of Copyright.

Doan is passionate about photography and takes photos of herself and others, posting significant numbers on her own website and online platforms such as Facebook and Instagram, the filing says.

She alleges that her “personal biometric information” and photos have been collected, copied, reproduced, stored or used by Clearview without her knowledge or consent.

The class action lawsuit would cover people in Canada whose images are in the Clearview AI database and those who have copyright and moral rights to the photos.

Seeks a court order for the RCMP to destroy all Clearview documents and information in response to database searches involving Canadian residents.

In their filing, federal attorneys note that Doan obtained confirmation from Clearview that, as of July 10, 2020, the company had identified seven separate images of her on the Internet. These appear to be from his Instagram and Twitter accounts, his business website, and two unrelated sources.

“Whether one is talking about Google, Facebook, Instagram, Clearview, or a telephone directory, access to any public database or search engine does not create liability with respect to each person whose information is contained therein, regardless of whether or how or what information was actually accessed,” the federal filing says.

Doan does not allege that the RCMP actually saw, let alone copied, even a single photograph of her or taken by her in Clearview, government attorneys say.

“His case is based on the idea that this fact does not matter. If it matters. In the absence of any material fact that the defendant sought, viewed, or copied any information relating to the plaintiff, it is illusory to speak of violations of her rights or of causation,” the federal filing says.

“In fact, the plaintiff has not (and could not) allege that she suffered any harm of any kind.”

Our Morning Update and Evening Update newsletters are written by Globe editors and give you a concise summary of the day’s biggest headlines. sign up today.

Leave a Comment