ICE and DHS use Clearview AI, but won’t say how. They’re being sued for an answer.

The ACLU of Northern California and immigrant advocacy groups Just Futures Law, the Immigrant Defense Project and Mijente have filed suit against Immigration and Customs Enforcement, the Department of Homeland Security and Customs and Border Protection to gain access to any documents that show how and if they use Clearview AI's facial recognition software, after the government agencies did not respond to Freedom of Information Act requests.

Clearview AI provides software to match people's faces to billions of photographs and other personal information scraped from sites and services across the internet. The company has drawn criticism from across the political spectrum for gathering data without user consent, and is under investigation in the U.K., Australia and Europe for potentially violating privacy laws with its aggressive data-scraping policies.

The exact ways these federal agencies use Clearview's software are not public knowledge, but federal contracting records show the agencies have paid to have access. After the three groups requested that information through federal open records laws and were ignored, they filed suit in order to reveal how those contracts have been put into practice.

This lawsuit aims to ensure the public knows what these agencies are doing, and why (not whether their actions are illegal). "With this FOIA, we have a lot of questions. How is ICE using this? Who are they using it on? Are there any accountability measures in place?" said Sejal Zota, the co-founder and legal director of Just Futures. "At the very least, we want to know what's happening."

It became common practice under the Trump administration for DHS and its borders and customs enforcement agencies to regularly ignore or resist FOIA requests, according to Jennifer Jones, a technology and civil liberties fellow at the same ACLU office. While the Biden administration has expressed interest in more transparency and expediting requests, it's not unusual to have to sue these particular agencies to force them to comply with freedom of information laws, she said.

"They need to be providing information like this in a timely manner, and at this point it's been over five months," she said.

Surveillance technologies like Clearview AI could make it much easier for law enforcement agencies to track down people based on a name, address or even a grainy picture of a face, using data obtained without the consent of the person being tracked. "Clearview AI in our view is particularly concerning because they have expanded the reach of facial recognition so much by scraping and scanning billions of personal photos to create the massive database," said Vasudha Talla, the immigrant rights director for the ACLU of Northern California. "When you have a tool like this in the hands of ICE, DHS, CPB, obviously that raises concerns that when someone may post on the internet very naively, there is a chance that if ICE is using this tool as part of their immigration enforcement operation, that they could really be putting their family members or themselves at risk."

While the four groups are focusing mainly on the potential consequences for immigration and immigrant families in their suit, Talla suggested that because CBP has previously been known to deploy surveillance technologies against American citizens, the ACLU also has questions about whether this particular tool has been used for domestic surveillance.

Because the Biden administration has said it is conducting a full review of DHS's role in migrant detention, Mijente is hoping that forcing the agency to be transparent about this information will in turn cause the administration to pay more attention to how DHS uses surveillance technologies in its review, according to Jacinta Gonzalez, Mijente's field director.

"Clearview is the epitome of tech gone rogue, combined with policing gone rogue. In terms of how it's being used and how it's being implemented, it brings up really fundamental questions for us about not only facial recognition technology, and what happens to our information on the internet, and how easily that can be put in the hands of police," she said.