Ever since The New York Times first reported on Clearview AI in January 2020, the world has grappled with the reach of the controversial company, which offered facial recognition services used by more than 600 law enforcement agencies.

Canada has been no different, and the fallout from the revelation of Clearview AI continues 18 months from the Times' initial report. The Office of the Privacy Commissioner found the Royal Canadian Mounted Police violated the Privacy Act through its use of Clearview AI's technology.

"Our most recent investigation has concluded that the RCMP contravened the federal public sector law, the Privacy Act, when it collected information from Clearview," said Privacy Commissioner of Canada Daniel Therrien. "In our view, a government institution simply cannot collect personal information from a third-party agent if that third-party’s collection was unlawful in the first place."

Therrien is referencing the investigation the OPC and its provincial colleagues concluded in February, when the agencies found Clearview AI violated federal and provincial privacy laws by collecting images without Canadians' consent.

The RCMP's use of Clearview was not the only area of concern for the OPC. Therrien said the investigation found "serious and systemic" gaps in the RCMP's policies and systems to track, identify, assess and control the novel collection of personal data, going so far as to say those policies were nonexistent. 

Another trouble spot was the police organization's inability to identify the use cases for the majority of times it tapped into Clearview's databases.

"The RCMP initially told us they were not using the Clearview service, then acknowledged that some of their officers were, in part for arguably legitimate purposes to track serious criminals or to find missing persons," said Therrien. "Our investigation found approximately 6% of the searches made through Clearview were for incidents involving child exploitation or child sexual cases, but in something like 85% of the searches we were able to look at, the RCMP did not actually account for use, and that is extremely troubling." 

The RCMP is no longer using Clearview AI, but the OPC said in its announcement of the investigation it remains concerned "that the RCMP did not agree with its conclusion that it contravened the Privacy Act." The police department did agree to implement recommendations brought forth by the privacy commissioner, including "conducting fulsome privacy assessments of third party data collection practices to ensure any personal information is collected and used in accordance with Canadian privacy legislation."

While the investigation into the RCMP's use of Clearview AI may have concluded, the conversation around law enforcement's use of facial recognition technology is just getting started. In addition to revealing the findings of its Clearview AI probe, Therrien announced the OPC and its provincial and territorial colleagues issued draft guidance on police use of facial recognition. 

Therrien also announced the initiation of a consultation period for the guidance. Stakeholders will have until Oct. 15 to submit their viewpoints on the draft guidance before it is finalized, including offering their thoughts on the crimes where facial recognition technology use would be most appropriate. 

Feedback from police departments will obviously be key in shaping the final form of the guidance, but Therrien noted they will not be the only group the commissioners will tap for a response.

"We think that the police forces will participate," said Therrien. "We have indications not only from the RCMP, but also from the Canadian Association of Chiefs of Police that they would like to engage in a conversation with us on how to use this technology responsibly. Of course, we will not limit our discussion with police forces. It is important that we speak to police forces, but we will also speak to civil society and many other stakeholders to send us views on how this should be used responsibly."

Therrien acknowledged facial recognition technology is an important tool for law enforcement to tackle serious crimes. The main challenge is agreeing on what those crimes should be, and ensuring that Canadians can feel confident law enforcement is not abusing other technologies similar to what was provided by Clearview AI.

As an example, Therrien said facial recognition used by the police could reduce Canadians' appetite to exercise their freedom of association, speech and assembly. Therrien wants to ultimately achieve a balance where police departments can use facial recognitions to solve those tough crimes and Canadians can exercise their rights without fear of abuse.

"That’s why, after concluding the RCMP had used this particular technology unlawfully, we did not stop there," said Therrien. "We found it would be helpful, hopefully, to start a discussion as to what should be the circumstances in which police should be able to use these tools because these criminals are using new tools and the police cannot be left behind. It’s a complicated issue, and drawing lines as to what is permissible and responsible and what not permissible is not an easy task." 

Photo by Toa Heftiba on Unsplash