By Nathan Freed Wessler, ACLU Staff Attorney

For several years, a little-known start-up based in New York has been amassing a database of billions of our faceprints — unique biometric identifiers akin to a fingerprint or DNA profile — drawn from personal photos on our social media accounts and elsewhere online. The company has captured these faceprints in secret, without our knowledge, much less our consent, using everything from casual selfies to photos of birthday parties, college graduations, weddings, and so much more.
 
Unbeknownst to the public, this company has offered up this massive faceprint database to private companies, police, federal agencies, and wealthy individuals, allowing them to secretly track and target whomever they wished using face recognition technology.
                                                     
That company is Clearview AI, and it will end privacy as we know it if it isn’t stopped. We’re taking the company to court in Illinois today on behalf of organizations that represent survivors of sexual assault and domestic violence, undocumented immigrants, and other vulnerable communities. As the groups make clear, Clearview’s face surveillance activities violate the Illinois Biometric Information Privacy Act (BIPA), and represent an unprecedented threat to our security and safety.
 
Face recognition technology offers a surveillance capability unlike any other technology in the past. It makes it dangerously easy to identify and track us at protests, AA meetings, counseling sessions, political rallies, religious gatherings, and more. For our clients — organizations that serve survivors of domestic violence and sexual assault, undocumented immigrants, and people of color — this surveillance system is dangerous and even life-threatening. It empowers abusive ex-partners and serial harassers, exploitative companies, and ICE agents to track and target domestic violence and sexual assault survivors, undocumented immigrants, and other vulnerable communities.
 
By building a mass database of billions of faceprints without our knowledge or consent, Clearview has created the nightmare scenario that we’ve long feared, and has crossed the ethical bounds that many companies have refused to even attempt. Neither the United States government nor any American company is known to have ever compiled such a massive trove of biometrics.
 
Adding fuel to the fire, Clearview sells access to a smartphone app that allows its customers — and even those using the app on a trial basis — to upload a photo of an unknown person and instantaneously receive a set of matching photos.
 
Clearview’s actions clearly violate BIPA. The law requires companies that collect, capture, or obtain an Illinois resident’s biometric identifier — such as a fingerprint, faceprint, or iris scan — to first notify that individual and obtain their written consent. Clearview’s practices are exactly the threat to privacy that the legislature intended to address, and demonstrate why states across the country should adopt legal protections like the ones in Illinois.
 
In press statements, Clearview has tried to claim its actions are somehow protected by the First Amendment. Clearview is as free to look at online photos as anyone with an internet connection. But what it can’t do is capture our faceprints — uniquely identifying biometrics — from those photos without consent. That’s not speech; it’s conduct that the state of Illinois has a strong interest in regulating in order to protect its residents against abuse.
 
If allowed, Clearview will destroy our rights to anonymity and privacy — and the safety and security that both bring. People can change their names and addresses to shield their whereabouts and identities from individuals who seek to harm them, but they can’t change their faces.
 
That’s why we’re teaming up with lawyers at the ACLU of Illinois and the law firm of Edelson PC, a nationally recognized leader in consumer privacy litigation, to put a stop to Clearview’s egregious violations of privacy. We are asking an Illinois state court to order the company to delete faceprints gathered from Illinois residents without consent, and to stop capturing new faceprints unless it complies with the Illinois law.
 
There is a groundswell of opposition to face surveillance technology, and this litigation is the latest chapter in an intensifying fight to protect our privacy rights against the dangers of this menacing technology. Across the nation, the ACLU has been advocating for bans on police use of face recognition technology, leading to strong laws in places like Oakland, San Francisco, and Berkeley, California, and Springfield and Cambridge, Massachusetts, as well as a statewide prohibition on use of the technology on police body cams in California.
 
We won’t let companies like Clearview trample on our right to privacy.

By Julia Kaye, ACLU Staff Attorney

The COVID-19 pandemic has swept the globe and upended normal life. In the four months since the first U.S. case was reported, more than 1.5 million people have been infected and 100,000 people have died in the United States. To mitigate risk, public health authorities tell us to get our groceries and prescriptions delivered, wave to grandma from the window, and generally avoid all unnecessary trips and close physical interactions outside the home.        
 
Consistent with these guidelines, federal agencies have taken every opportunity to encourage telemedicine use and give clinicians the flexibility to forgo unnecessary in-person encounters in accordance with their clinical judgment. They have waived various rules requiring in-person visits, even for controlled substances like opioids.
 
But there is one striking exception: The U.S. Food and Drug Administration (FDA) continues to subject mifepristone, a safe, effective prescription medication used to end an early pregnancy or treat a miscarriage, to a uniquely burdensome restriction that is jeopardizing the health and lives of patients and clinicians, with particularly dire implications for low-income communities and communities of color.
 
The FDA requires that the mifepristone pill be dispensed only in a hospital, clinic, or medical office: Patients who have already been evaluated by a clinician through telemedicine or at a prior in-person visit are not allowed to fill their prescription by mail. Instead, they must travel to one of these clinical settings to pick up the pill — even if they are receiving no in-person medical services at that time, and even if they will swallow the medication later at home (as the FDA permits).
 
For months, leading medical authorities have implored the FDA to suspend this restriction and give clinicians who provide abortion and miscarriage care the flexibility they need to protect their patients during this crisis. But the administration is intransigent.
 
That’s why today we filed a lawsuit on behalf of a coalition of medical experts and reproductive health, rights, and justice advocates, led by the American College of Obstetricians and Gynecologists (ACOG), challenging the FDA rule that forces patients to take on unnecessary COVID-19 risks as a condition of receiving medication abortion and miscarriage care.
 
Of the more than 20,000 drugs regulated by the FDA, mifepristone is the only one that patients must obtain in a clinical setting, yet may self-administer unsupervised at home. It’s easy to see why no other drugs carry this restriction: There is no medical reason to dictate where a patient is standing when handed a pill they will put in their pocket to swallow later at home.
 
There is likewise no reason to impose this requirement on mifepristone, which has been FDA approved for 20 years and used by more than 4 million people. In the FDA’s words, mifepristone’s “efficacy and safety have become well established by both research and experience, and serious complications have proven to be extremely rare.” In fact, the FDA permits mifepristone to be sent to patients’ homes, in larger quantities and doses, when used for a purpose other than early pregnancy termination. 
 
Yet the FDA has maintained this unnecessary restriction throughout the pandemic — despite CDC guidance specifically encouraging patients to fill prescriptions by mail-order delivery wherever possible, and despite a national medical consensus that mifepristone prescribers need the same flexibility as other clinicians to forgo medically unnecessary in-person visits, consistent with their best clinical judgment, during this crisis.
 
As is virtually always the case when it comes to restrictions on abortion, the harm here is not borne equally. Low-income people and people of color, who comprise a majority of people seeking abortions, bear the brunt of the FDA’s restrictions. At the best of times, arranging transportation and child care in order to travel to a health care facility to pick up a pill is difficult or impossible for many patients. Some must travel hundreds of miles — or even take a flight — causing severe delays and blocking some patients from accessing abortion care at all.
 
Now, during a historic unemployment crisis with many schools and day cares shuttered, the FDA is forcing patients to take on life-threatening — and entirely unnecessary — risks in order to access essential health services. This is particularly dangerous for communities of color, who, due to longstanding inequities in access to and quality of health care and other manifestations of structural racism, are dying from COVID-19 at drastically higher rates.
 
Our coalition of plaintiffs represents tens of thousands of clinicians providing abortion and miscarriage care to patients across the nation, and the department chairs of obstetrics and gynecology at nearly 150 universities. It includes activists and organizers dedicated to removing barriers to high-quality pregnancy-related care that disproportionately harm marginalized communities. They have asked the FDA to do the right thing on mifepristone, but the agency has refused.
 
Pregnant people should not have to needlessly jeopardize their safety in order to access essential medication abortion and miscarriage care during the pandemic. We’re going to court to ensure that in this time of crisis, people do not have to subject themselves to unnecessary risk to access the reproductive health care they need.

By Dale Ho, ACLU Director & Sonia Gill, ACLU Senior Legislative Counsel

No one should have to choose between their health and their vote, but during the Wisconsin primary, an estimated 19,000 Milwaukeeans were forced to risk their health to cast their primary ballots. More than 50 Milwaukee County voters have been diagnosed with COVID-19 and were identified as having been infectious or infected at the time of voting; more than half of them had no other known possible exposure to COVID-19 other than voting. 
 
To protect our democracy, it’s imperative that we expand early voting, allow every eligible voter to vote by mail, and reduce the logistical, financial, and health barriers that inhibit voting by mail. Currently, there are approximately 16 states that do not allow no-excuse absentee voting by mail. In a number of these states, the limitations are codified in state law or within the states’ constitution, making litigation and congressional action necessary to allow people to safely vote this election cycle.  The House recently passed the HEROES Act, which includes vital measures to protect our health and right to vote. But now, it’s up to the Senate to push for these critical voting provisions in its next relief bill and members of Congress to co-sponsor Sen. Kamala Harris and Congressman Jim Clyburn’s VoteSafe Act.

Advocacy

At the national level, we’re calling on Congress to increase federal funding for elections administration, and to mandate national standards for no-excuse absentee voting and a minimum 14-day early vote period, to ensure that every eligible American can vote safely in November. An increase in federal resources ⁠is necessary to help states safely administer elections and process a surge of mail-in ballots in a timely and secure manner.

We are also urging municipal, local, and state-level policymakers to expand access to absentee ballots and extend early voting periods so that their constituents can either avoid physical polling locations or minimize their interactions with other voters if they choose to vote in person. Officials from across party lines have already expanded eligibility to vote by mail to all voters in a wide range of states, including Alabama, Indiana, New Hampshire, New York, and West Virginia. We’re bolstering these bipartisan efforts to expand access to vote by mail through litigation in a series of states.

Litigation

In Texas, we filed a lawsuit with coalition partners, seeking to expand Texans’ access vote by mail. Two weeks later, a Texas court ruled that all registered voters qualify to request a mail-in ballot this July due to the COVID-19 public health crisis; unfortunately the Texas Supreme Court has now ruled to the contrary.

In Missouri, Tennessee, and South Carolina, we are similarly suing to make absentee mail-in balloting available to all eligible voters. Vote by mail will be the safest option for many during this pandemic. In response to our lawsuit, the Missouri legislature expanded access to vote by mail for all voters during 2020 due to COVID-19; the bill is awaiting the Governor’s signature. Similarly, South Carolina expanded access to vote by mail for the June primaries because of the pandemic — but has yet to do so for the general election. 

We are also challenging states that have burdensome, unsafe, or financially prohibitive restrictions to voting by mail. We are suing in Virginia, Missouri, and South Carolina so that voters can vote by mail without having to get a witness signature on their ballots ⁠— an unnecessary requirement and a clear violation of public health experts’ social distancing recommendations. Because of an agreement reached with the State of Virginia, Virginia voters in the June 23 primary will no longer need a witness to sign their absentee ballot during the pandemic, if they don’t believe they can safely find one. Similarly, the Missouri legislature, citing our lawsuit, recently passed a bill that would eliminate the state’s notary requirement for voters at high risk of severe COVID-19 complications — but they have not yet done so for all voters, and so our litigation continues. In our case in South Carolina, a judge ruled that voters won’t need a witness to sign their ballot during the COVID-19 pandemic. Social distancing and stay at home orders mean that many wouldn’t have access to a “witness.”

Beyond challenging witness signature requirements, we are in court over Georgia’s failure to provide prepaid postage on mail-in absentee ballot envelopes, and in Montana, we’re suing to ensure that all voters can get assistance when sending their ballots to election officials. In Michigan we’re challenging the state’s requirement that absentee ballots be received by Election Day in order to be counted. And in Kentucky, we’re challenging the state’s photo ID requirement for voting, because DMVs are now closed or inaccessible due to the pandemic, and many voters lack the means to include a photocopy of their IDs along with their mail-in ballots. 

In this tumultuous and uncertain time, one thing we know is that we must prepare for the general election in November.

We’ll keep fighting to safeguard both the nation’s health, and our democracy.