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Lawyers disagreed with Clearview AI's defense that it has a First Amendment right to scrape people's images from public posts.

The First Amendment protects a lot of things, even flipping off a cop or burning the flag. But it may not give a controversial facial recognition company the right to keep scraping data from the internet for a database of more than 3 billion images.

On a CBS This Morning segment on Wednesday, Clearview AI CEO Hoan Ton-That said his company has a First Amendment right to access public data, including photos from YouTube, Facebook, Twitter, LinkedIn and Venmo. It uses those photos for a controversial database primarily accessed by law enforcement. (Disclosure: CBS News and CNET are owned by the same parent company.)

Facebook, Twitter and Google have already sent cease-and-desist letters to Clearview, saying data scraping violates their terms of service. Clearview's legal counsel has been in touch with the companies, Ton-That told CBS, defending the practice with the first item in the Bill of Rights. On Thursday, LinkedIn said it's also sending a cease-and-desist letter to the company.

"There is also a First Amendment right to public information," Ton-That said in the interview. "The way we have built our system is to only take publicly available information and index it that way."

Privacy and technology lawyers are finding plenty of holes in the company's argument. They say that First Amendment protections apply only in cases where the government interferes with someone's speech and that an activity protected by the First Amendment could run afoul of a specific law. In addition, the First Amendment argument hasn't worked in previous data collection cases, though none of those involved facial recognition.

"I don't really buy it," said Tiffany C. Li, a privacy attorney and visiting professor at Boston University School of Law teaching technology law. "It's really frightening if we get into a world where someone can say, 'The First Amendment allows me to violate everyone's privacy.'"

Clearview didn't respond to a request for comment.

The First Amendment specifically protects people from the government interfering with someone's free speech. But it says nothing about private businesses, like Twitter and Google, which can set up ground rules for their sites and services. Because it doesn't cover private business, arguments that Twitter and Facebook violate the First Amendment by "censoring" postsalso often fall flat.

"Defending and respecting the voices of the people who use our service is one of our core values at Twitter, and we remain committed to protecting their privacy," Twitter said in a statement.

Google didn't immediately respond to requests for comment.

"If this were a government website that was posting information and someone was scraping it, as opposed to Facebook or Twitter data, there could be a much clearer argument," Li said. "Here, these were private parties."

Privacy attorney Tiffany C. Li

Even if the First Amendment does protect data scraping, Clearview's use of it could still violate privacy and biometrics laws across the US, said Albert Fox Cahn, a civil rights and technology attorney and executive director of the Surveillance Technology Oversight Project. Clearview is already facing a class action lawsuit in Illinois, in which plaintiffs claim the company violated the state's biometrics law.

"The way First Amendment analysis works is that just because you're protected under one law doesn't mean that you're protected under all laws," Cahn said. "Biometrics surveillance is different than other forms of data scraping -- to the extent that you're taking my image and profiting off of me, that creates a different legal issue than creating a directory."

Another way to think about this: The First Amendment protects your right to burn the flag, but it doesn't protect you from being charged with arson.

Still, tech giants would face an uphill battle if their main defense is that Clearview is violating their terms of service. Tech companies have tried to fight data scraping in the past. It hasn't always worked.

In 2017, LinkedIn, a professional network owned by Microsoft, sent a cease-and-desist letter to data analytics firm HiQ, saying the company was violating its terms of service by scraping public profiles and posts on the social network. LinkedIn blocked HiQ's access to public posts and warned the company would be violating the Computer Fraud and Abuse Act if it developed a workaround. The 1986 law contains broad definitions of what constitutes "hacking."

Like Clearview, HiQ used the First Amendment as a defense, arguing that the CFAA was a use of government authority to stifle access to information that was publicly available on LinkedIn. The social network lost the case and the data scraping was allowed to continue.

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The use of the First Amendment in the HiQ case, however, might not be a precedent for Clearview, lawyers say. That's because the decision ultimately came down to the court's interpretation of the CFAA's provisions, finding that data scraping on its own wasn't "hacking." In some cases, data scraping has benefits, like researchers using it to investigate racial discrimination on Airbnb.

On Thursday, LinkedIn said it's also taking action against Clearview AI.

"We are sending a cease-and-desist letter to Clearview AI. The scraping of member information is not allowed under our terms of service and we take action to protect our members," the company said.

Lawyers say Google, Facebook, LinkedIn and Twitter might not need to rely on the CFAA. Instead, they can use privacy protection to address the situation.

"If you want to deal with this, the way is not by messing with the CFAA. It's by going through biometric privacy laws," Li said. "I'm in favor of allowing for web scraping generally, but I'm also in favor of privacy."

Clearview says it's partnered with more than 600 law enforcement agencies in the US. Sen. Edward Markey, a Democrat from Massachusetts, has said Clearview presents "chilling privacy risks," while New Jersey's attorney general has barred the state's police from using the app over concerns about privacy and cybersecurity.

"Even if they're protected for the purposes of scraping, that doesn't mean they're protected for the ways they're using that data for biometric surveillance," Cahn said. "We shouldn't conflate immunity from the CFAA with immunity from every possible state and legal claim."

Originally published Feb. 6, 8 a.m. ET.Update, 3:12 p.m. ET:Adds that LinkedIn is now sending a cease-and-desist to Clearview.

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Clearview AI says the First Amendment lets it scrape the internet. Lawyers disagree - CNET

When it comes to free expression and the First Amendment, its important for us to know when it protects what we say and write and when it doesnt.

Case in point: Proposed Arizona House bill HB2124, related to access to online content. The sponsor, state Rep. Bob Thorpe, proposes to allow users or the state attorney general to sue an internet site that edits, deletes or makes it difficult or impossible for online users to locate and access content on the site in an easy or timely manner for politically biased reasons.

The bill is in line with complaints now fashionable among political conservatives nationwide that online platforms and social media sites from Google to Facebook to Twitter and others somehow exclude or downplay their views while emphasizing liberal viewpoints.

Nothing wrong with raising such concerns. The inner policies and algorithms of these web behemoths largely generally remain hidden and the entire online world is simply too new and ever-changing to provide an accurate portrait from the outside.

So, in effect we dont know what were not seeing when we search or use such sites, and those companies are free to set their own practices and rules on what we do see or post. Whether for altruistic or political motives, proposals such as the Arizona legislation would change that except that the First Amendment rules out such government intervention in a private business.

The First Amendment guarantees against content or viewpoint discrimination and by extension, access to information apply to government, not private individuals or companies, which have their own First Amendment rights to decide what they will or wont say and post. And even legislation cannot empower individuals (or attorneys general) to override that constitutional protection by using civil penalties rather than criminal law see the old legal adage, you cannot do by the back door what you cannot do by the front door.

Moreover, do we really want to override the First Amendment with such open access laws? Turn to another adage the law of unintended consequences. Requiring internet providers to permit unrestrained access and right to post material denies such companies the ability to respond to their consumers demands on materials that can range from offensive to repulsive. Thorpes bill excludes libelous or pornographic material, but what about currently banned content on most social media sites, such as videos that show public assaults or are intended to bully or harass? Would internet companies and social media sites be mandated to carry deliberate misinformation about health issues?

There is a small window in the wall of First Amendment protection that could possibly permit regulation of private online companies, called the public function exception. In effect, it turns a private concern into a government operation when performing an essential government function. The exception rests on a 1946 Supreme Court decision, in Marsh v. Alabama, involving a so-called company town. The court reasoned that since the town functioned as a government entity, not a private enterprise, it had become one.

But the court has refined its ruling through the years, and in 1974 held that such a conversion takes place only when the private concern is providing services exclusively done by government. Clearly, providing an online platform or a social media site fails to meet that test.

Some critics of the current social media policies argue that those sites are effectively a digital public square by virtue of their ubiquitous presence in modern life. Some reports say that more than seven in every 10 Americans used social media sites in 2018 and that the number increases each year. But the very nature of the web, in which start-ups and competing sites of all kinds arise constantly, would also seem to prevent isolating even dominant companies for such a quasi-government role with the required exclusive provider condition.

As shown in other examples where First Amendment protections come into conflict with practices or actions that offend, or seem to run counter to the marketplace of ideas concept of the widest exchange of ideals or viewpoints, the court of public opinion often functions more effectively and more quickly than legal action or legislation. Public discussions and resulting social pressures to combat online bullying or videos showing assault or even murders have demonstrably changed those private provider policies on what is posted and permitted, for example.

A shortcut through First Amendment protections may seem an expedient method at the time but for very good reasons, free expression advocates should resist quicker solutions for some, in the name of protecting those long-term freedoms for us all.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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COMMENTARY: Focus on when the First Amendment protects ... and when it doesn't - Crow River Media

A shortcut through First Amendment protections may seem an expedient method at the time but for very good reasons, free expression advocates should resist quicker solutions for some, in the name of protecting those long-term freedoms for us all.

When it comes to free expression and the First Amendment, its important for us to know when it protects what we say and write and when it doesnt.

Case in point: Proposed Arizona House bill HB2124, related to access to online content. The sponsor, state Rep. Bob Thorpe, proposes to allow users or the state attorney general to sue an internet site that edits, deletes or makes it difficult or impossible for online users to locate and access content on the site in an easy or timely manner for politically biased reasons.

The bill is in line with complaints now fashionable among political conservatives nationwide that online platforms and social media sites from Google to Facebook to Twitter and others somehow exclude or downplay their views while emphasizing liberal viewpoints.

Nothing wrong with raising such concerns. The inner policies and algorithms of these web behemoths largely generally remain hidden and the entire online world is simply too new and ever-changing to provide an accurate portrait from the outside.

So, in effect we dont know what were not seeing when we search or use such sites, and those companies are free to set their own practices and rules on what we do see or post. Whether for altruistic or political motives, proposals such as the Arizona legislation would change that except that the First Amendment rules out such government intervention in a private business.

The First Amendment guarantees against content or viewpoint discrimination and by extension, access to information apply to government, not private individuals or companies, which have their own First Amendment rights to decide what they will or wont say and post. And even legislation cannot empower individuals (or attorneys general) to override that constitutional protection by using civil penalties rather than criminal law see the old legal adage, you cannot do by the back door what you cannot do by the front door.

Moreover, do we really want to override the First Amendment with such open access laws? Turn to another adage the law of unintended consequences. Requiring internet providers to permit unrestrained access and right to post material denies such companies the ability to respond to their consumers demands on materials that can range from offensive to repulsive. Thorpes bill excludes libelous or pornographic material, but what about currently banned content on most social media sites, such as videos that show public assaults or are intended to bully or harass? Would internet companies and social media sites be mandated to carry deliberate misinformation about health issues?

There is a small window in the wall of First Amendment protection that could possibly permit regulation of private online companies, called the public function exception. In effect, it turns a private concern into a government operation when performing an essential government function. The exception rests on a 1946 Supreme Court decision, in Marsh v. Alabama, involving a so-called company town. The court reasoned that since the town functioned as a government entity, not a private enterprise, it had become one.

But the court has refined its ruling through the years, and in 1974 held that such a conversion takes place only when the private concern is providing services exclusively done by government. Clearly, providing an online platform or a social media site fails to meet that test.

Some critics of the current social media policies argue that those sites are effectively a digital public square by virtue of their ubiquitous presence in modern life. Some reports say that more than seven in every 10 Americans used social media sites in 2018 and that the number increases each year. But the very nature of the web, in which start-ups and competing sites of all kinds arise constantly, would also seem to prevent isolating even dominant companies for such a quasi-government role with the required exclusive provider condition.

As shown in other examples where First Amendment protections come into conflict with practices or actions that offend, or seem to run counter to the marketplace of ideas concept of the widest exchange of ideals or viewpoints, the court of public opinion often functions more effectively and more quickly than legal action or legislation. Public discussions and resulting social pressures to combat online bullying or videos showing assault or even murders have demonstrably changed those private provider policies on what is posted and permitted, for example.

A shortcut through First Amendment protections may seem an expedient method at the time but for very good reasons, free expression advocates should resist quicker solutions for some, in the name of protecting those long-term freedoms for us all.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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First Five: Focus on when the First Amendment protects and doesnt - McDowell News

A legal ministry that defends religious freedom is asking the U.S. Supreme Court to vindicate two Georgia college students whose school egregiously violated their free speech.

Alliance Defending Freedom (ADF) is seeking the Supreme Court's deliberation after two federal courts declined to address the case of Gwinnett College students Chike Uzuegbunam and Joseph Bradford.

In 2016, college officials quickly stopped Uzuegbunam from sharing his Christian faith with other students on the Lawrenceville, Georgia campus because he had not reserved one of two zones where free expression was allowed without a permit. When Uzuegbunam reserved a zone and again tried to share his faith, officials again ordered him to stop because someone complained, which made his evangelization efforts "disorderly conduct" under a Gwinnett policy that applied to any expression that disturbs the peace and/or comfort of person(s)." Student Joseph Bradford chose not to speak at all after seeing how officials treated Uzuegbunam.

After ADF filedUzuegbunam v. Preczewski, to challenge the colleges speech zone and speech code policies, Gwinnettchanged its policies. But attorney Travis Barham says that is not enough.

"They never acknowledged that they silenced those two students and intimidated them into silence repeatedly over the course of this incident," Barham tells OneNewsNow. "So that's what this is about. The government shouldn't be able to violate our rights and then walk away scot-free."

The case has been appealed to the U.S. Supreme Court because of the importance of the issues it addresses.

"Students at the colleges and universities are going to be our future leaders, our future judges, our future politicians," Barham says. "That's why it's all the more important for colleges and universities to embody the First Amendment principles that made our country great and the First Amendment principles that they say they espouse."

Without a legal ruling on the merits of the lawsuit, ADF is concerned the school could easily restore its old, unconstitutional policies.

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Colleges urged to embody 1st Amendment principles - OneNewsNow

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The Hatch Act, originally passed in 1939, substantially limits the political activity of most federal workers. The Supreme Court has ruled on more than one occasion that the Act is constitutional. Being constitutional does not necessarily make it the right thing to do.

Here are the basic restrictions that apply to most federal workers:

And here are the restrictions that apply tofurther restrictedemployees (those in intelligence or enforcement agencies, SES, ALJs and other highly paid employees):

While the intent of the Hatch Act provisions restricting federal workers may be sound, the result is, in effect, muzzling many federal workers and depriving them of their First Amendment rights.

Some of the restrictions as outlined Office of Special Counsel (OSC) guidance border on the absurd. Considerthis guidanceissued to a member or the Senior Executive Service whose wife was considering a run for Congress.

One question was, You first ask whether you can prepare food for fundraising events held at your home. The response? As a further restricted employee, you may not act in concert with a candidate for partisan political office. See 5 C.F.R. 734.402. The Hatch Act also prohibits further restricted employees from organizing, selling tickets to, promoting, or actively participating in a fundraising activity of a candidate for partisan political office. See 5 C.F.R. 734.410(b). Therefore, because you may not provide volunteer services to a candidate, you may not prepare food for, or otherwise help organize, any fundraising event. So he cannot make cookies for an event in his home. OSC also noted that there is no problem with his wife holding the event in their home, but he cannot make a welcoming speech. He is able to welcome them, however.

Does that do anything to protect our democracy? I think not. Does anyone assume this gentleman would not support his wifes candidacy? Does anyone think his direct reports or co-workers dont know that?

The Hatch Act restrictions serve to limit his right to speak and in the process reduce transparency. They also add confusion about what can and cannot be done. Many federal workers disciplined for Hatch Act violations had no intent to violate the law.

A far better approach is to retain limits on federal workers running for partisan office and absolute prohibitions on federal workers taking official action based on political views. A hiring manager makes a hiring decision based on politics? S/he should be fired. A federal employee awards contracts based on politics? S/he should be fired. A federal executive bakes cookies for his wifes fundraiser in their home? Who cares?

The way the Hatch Act is working now does nothing to protect our democracy, nor does it do anything to ensure electoral integrity. It prevents many employees from speaking out about the politicians whose decisions affect them, such as employees who are furloughed due to a lapse in appropriations. It drives political activity for many employees underground, and does nothing to limit the political activity of senior political appointees.

When Obama Administration Housing and Urban Development Secretary Julian Castro violated the Act in April 2016, nothing happened. The OSCissued a finding that he had, in fact, violated the Hatch Act, and that was it.

When Kellyanne Conway violated the Hatch Act at least twice, OSCissued a letterto President Donald Trump saying, If Ms. Conway were any other federal employee, her multiple violations of the law would almost certainly result in her removal from her federal position by the Merit Systems Protection Board.

In both of these cases, highly ranking political appointees violated the Hatch Act and got away with it. Both spoke in their official capacity in favor of the president they served in a manner that clearly violated the law.

OSCs letter to President Donald Trump was spot on any career employee who committed the same offense would be fired. One of the glaring weaknesses of the Hatch Act is that it is toothless with respect to an Administration in power. President Obama could ignore Julian Castros violation and President Trump can ignore Kellyanne Conways violation.

In 1973 the Supreme Court upheld the constitutionality of the Hatch Act. In his dissent, Justice William O. Douglas strongly disagreed with the decision. Justice Douglas said:

We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employees job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall. If Government employment were only a privilege, then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized on a basis that infringes [the employees] constitutionally protected interests-especially, his interest in freedom of speech.If Government, as the majority stated inMitchell,may not condition public employment on the basis that the employee will not take any active part in missionary work, it is difficult to see why it may condition employment on the basis that the employee not take an active part in political campaigns. For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause.Free discussion of governmental affairs is basic in our constitutional system.

I believe Justice Douglas was right, particularly when he said, In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall.

What we have is a law that restricts speech of federal workers, but in practice does not restrict the speech of highly visible senior political appointees. It limits transparency by driving political activity underground, where it is less likely to be known to anyone.

I prefer to see transparency, and free exercise of the First Amendment rights of everyone, whether s/he works for the federal government or for Burger King. But at least we can take comfort in knowing that senior executives will not be baking cookies for their spouses political campaigns.

2020 Jeff Neal. All rights reserved. This article may not be reproduced without express written consent from Jeff Neal.

Tags: Hatch Act

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Amend the Hatch Act and Restore Federal Workers' First Amendment Rights - FedSmith.com