The Information Commissioner’s Office (ICO) wants to launch a counter-appeal against a decision to block a £7.5m fine it handed to facial recognition technology vendor Clearview AI. The UK data watchdog believes the company unlawfully stores images of UK citizens on its database.
Clearview was hit with the ICO fine in May 2022, but last month successfully appealed the penalty at a First Tier Tribunal, which deals with appeals against rulings made by UK public bodies. The ICO said in a statement today that it is seeking permission from the tribunal to appeal the decision.
ICO vs Clearview AI could go to round three
Clearview scrapes billions of images from publicly available websites and puts them into a database, which it sells to law enforcement agencies to help in their search for criminals. Though it does not sell its services in the UK, it does feature images of UK citizens in its database, something which the ICO deemed unlawful.
However, the tribunal decided that because it doesn’t operate in the UK or Europe, it falls outside the scope of the regulator’s powers, and quashed the decision, even though it agreed with the ICO’s finding that the company was processing personal information of citizens under UK law.
The regulator said that it “welcomes this important clarification regarding UK data protection legislation as it provides certainty for businesses who are carrying out or planning to carry out similar activities”, adding that “the ruling makes clear that even if a company is not established in the UK, it is subject to UK data protection law that is related to the monitoring of people living in the UK. As such, where Clearview provides its services commercially, it will be subject to the ICO’s jurisdiction.”
Because of this, the ICO considers that the tribunal “incorrectly interpreted the law when finding Clearview’s processing fell outside the reach of UK data protection law on the basis that it provided its services to foreign law enforcement agencies.”
The statement added: “The commissioner’s view is that Clearview itself was not processing for foreign law enforcement purposes and should not be shielded from the scope of UK law on that basis.”
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The ICO will now await the decision of the tribunal as to whether an appeal can go ahead.
The ICO must ‘defend the public’s privacy’
John Edwards, the UK information commissioner, said: “I fully respect the role of the Tribunal to provide scrutiny of my decisions – but as the defender of the public’s privacy, I need to challenge this judgment to clarify whether commercial enterprises profiting from processing digital images of UK people are entitled to claim they are engaged in ‘law enforcement’.”
Edwards said it is his job “to protect the data rights of the people of the United Kingdom and it is my view that there are too many who are being affected by the sheer scale and intrusiveness of Clearview’s mass scraping of personal information.
He said: “This is an important issue within the AI sphere and whilst my office supports businesses that innovate with AI solutions, we will always take the appropriate action to protect UK people when we believe their privacy rights are not being respected.”
Clearview AI initially sold its software to private sector buyers, but following a lawsuit brought by privacy campaigners in the US in 2020, it now only sells to law enforcement and national security agencies.
Tech Monitor has approached the company for comment.
