OPINION
02/09/2021 16:36 EST | Updated 02/11/2021 11:43 EST

What Clearview AI Did Was Illegal, But Don't Play Down The RCMP's Role In It

Mass surveillance technology like Clearview's would not exist without demand from Canadian police.

Privacy Commissioner of Canada Daniel Therrien released a damning statement Wednesday about controversial technology company Clearview AI’s collection and analysis of facial photos of Canadians posted online. He, alongside his provincial counterparts, concluded that “What Clearview does is mass surveillance and it is illegal.” Canada is not the first country to take issue with Clearview’s technology. Similar investigations are ongoing in Britain and Australia.

Chris Wattie/Reuters
Canada's Privacy Commissioner Daniel Therrien said in a statement that Clearview AI conducted illegal mass surveillance.

The Clearview scandal revealed last year that dozens of Canadian police departments — most notably the RCMP — have used the company’s software to identify suspects. While Therrien’s recent condemnation of Clearview is a step in the right direction, it does not go far enough. To date, the government’s response has narrowly focused on holding the company accountable for its unlawful data collection practices.

While an investigation into the RCMP’s use of the technology is underway, the public response from officials has sought to pin blame onto Clearview AI in a way that effectively absolves agencies like the RCMP from responsibility. Although there is a class action lawsuit currently being considered against the RCMP, the government must also take stronger action to rein in the RCMP’s use of mass surveillance. 

Canadian regulators must acknowledge that police departments ultimately drive market demand for private technology solutions like Clearview AI. The RCMP knew very well what it was getting into when it procured Clearview AI’s services. Surveillance technology vendors fill a market demand, and this market demand originates from the police. 

Until we target our efforts at holding the police accountable for procuring these controversial technologies, Canadians’ rights to privacy and freedom of expression will remain under threat.

When the story about Clearview first broke, the RCMP repeatedly made false claims denying their use of the technology. As pressure mounted, the agency changed their story to insist they do “not comment on specific investigative tools or techniques.” In reality, they were relying on Clearview’s invasive software all along.  

In 2016, it was discovered that, for over a decade, the RCMP had delayed public disclosure of their use of “IMSI catchers,” which suck up data from cell-phones by imitating cell-phone towers. An investigation by the privacy commissioner identified six cases where the RCMP had unlawfully monitored Canadians. Despite identifying illegal surveillance practices and systematic obfuscation at the RCMP, the report treated the agency with kid gloves, praising them for having cooperated with the investigators, though urging them to be more transparent with Canadians going forward.

Dimitri Otis via Getty Images

The Clearview AI scandal is a very public sign that the RCMP has not taken this advice seriously. In November of 2020, Canada’s Information Commissioner concluded an investigation into the RCMP’s unwillingness to uphold its obligations under the Access to Information Act stating that by “nearly every measure, the RCMP is failing in terms of its obligation to ensure that Canadians have access to information about its operations and decision-making.”

Until we target our efforts at holding the police accountable for procuring these controversial technologies, Canadians’ rights to privacy and freedom of expression will remain under threat. If it’s not Clearview AI making headlines in a year from now, it will be another company just like it. This scandal is a symptom of a deeper underlying problem. As long as the demand for these kinds of tools exists, companies like Clearview AI will continue to flourish via the lucrative procurement opportunities created by police departments.

The determination that Clearview AI’s data collection practices are illegal is a positive step but it does not address the major underlying issue: by focusing all of our attention on the egregious practices of Clearview AI, we have forgotten the central role that police play in enabling companies like Clearview to exist in the first place. To properly address this issue, the RCMP and Canadian police more broadly must be held accountable for their adoption of advanced surveillance technologies like facial recognition. The RCMP knowingly lied to Canadians and, so far, this has been met with impunity. 

To Therrien’s condemnation of Clearview AI we say: great. But let’s not forget about the police, who are meant to uphold the law, not skirt it. Otherwise, Canadian privacy and access watchdogs are just playing Whack-a-Mole.

Jamie Duncan (@damiejuncan) and Alex Luscombe (@alexlusco) are doctoral researchers at the University of Toronto’s Centre for Criminology and Sociolegal Studies. They are also researchers at the University of Winnipeg’s Centre for Access to Information and Justice.

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