Back in February 2020, Holman Webb published an article ‘AI and Facial Identification Technology – the Face of the Future?’, which referred to an article in the New York Times highlighting Clearview AI, and the use of the company’s facial recognition technology by law enforcement agencies internationally.

At the time the Australian Parliament was considering the introduction of the Identity-matching Services Bill 2019 and Australian Passports Amendment (Identity-matching Services) Bill 2019 which would enable the Department of Home Affairs and Foreign Affairs and Trade to utilise similar facial recognition technology.

As it turns out, Holman Webb Lawyers were not the only ones taking a close look at Clearview AI. Since that time, it appears that Clearview AI was offering free software trials to numerous law enforcement agencies within Australia, some of whom have commenced their investigation into the use of the app and have been feeding visual data into the system.

The Office of the Australian Information Commissioner (‘OAIC’) commenced an investigation into potential privacy breaches arising from use of the app back in January 2020, the findings of which have just been released. The OAIC has now issued a determination ordering that Clearview AI stop collecting any information on Australians, and deletes all images of Australians that it currently retains in its database.

In relation to the finding, Australian Information Commissioner Angela Falk said:

“By its nature, this biometric identity information cannot be reissued or cancelled and may also be replicated and used for identity theft. Individuals featured in the database may also be at risk of misidentification.

These practices fall well short of Australian’s expectations for the protection of their personal information…When Australians use social media or professional networking sites they don't expect their facial images to be collected without their consent by a commercial entity to create biometric templates for completely unrelated identification purposes…

The indiscriminate scraping of people's facial images, only a fraction of whom would ever be connected with law enforcement investigations, may adversely impact the personal freedoms of all Australians who perceive themselves to be under surveillance…

Clearview's AI activities in Australia involve the automated and repetition collection of sensitive biometric information from Australians on a large scale, for profit.”

In what privacy advocates might consider to be a unfortunate twist, the OAIC is currently not able to directly issue fines for companies for breaching the privacy of Australians, but can apply to the courts for an order if there is a "serious or repeated interference with privacy".

So far, the Commissioner has opted not to apply to the courts for a fine against Clearview AI, presumably due to uncertainty surrounding the judicial interpretation of what constitutes a "serious and repeated interference with privacy".

Readers may also recall that the government was seeking to positively legislate to allow identity matching services under the Identity-Matching Services Bill 2019. Ultimately that Bill did not proceed and was rejected by the Parliamentary Joint Committee on Intelligence and Security.

It is clear from the Commissioner's findings that facial recognition technology should not be used for Australian law enforcement unless there is effective legal safeguards in place - safeguards that, it seems, were not offered by the Clearview app.

If you have a query relating to any of the information in this article, or you would like to speak with a member of either Holman Webb’s Business, Corporate and Commercial Group, or Technology Law Group with respect to a privacy concern of your own, please don’t hesitate to get in touch today.