Facial recognition in police hands: Assessing the ‘Clearview case’ from a European perspective
| Published date | 01 September 2020 |
| Date | 01 September 2020 |
| DOI | 10.1177/2032284420948161 |
| Author | Isadora Neroni Rezende |
| Subject Matter | Special Issue Articles |
Special Issue Article
Facial recognition in police
hands: Assessing the
‘Clearview case’ from a
European perspective
Isadora Neroni Rezende
Universitat Aut`
onoma de Barcelona, Spain; Universit`
a di Bologna, Italy; Katholieke Universiteit Leuven, Belgium
Abstract
Since 2019, over 600 law enforcement agencies across the United States have started using a
groundbreaking facial recognition app designed by Clearview AI, a tech start-up which now plans to
market its technology also in Europe. While the Clearview app is an expression of the wider
phenomenon of the repurposing of privately held data in the law enforcement context, its use in
criminal proceedings is likely to encroach on individuals’ rights in unprecedented ways. Indeed, the
Clearview app goes far beyond traditional facial recognition tools. If these have been historically
limited to matching government-stored images, Clearview now combines its technology with a
database of over three billion images published on the Internet. Against this background, this article
will review the use of this new investigative tool in light of the European Union (EU) legal
framework on privacy and data protection. The proposed assessment will proceed as follows.
Firstly, it will briefly assess the lawfulness of Clearview AI’s data scraping practices under the
General Data Protection Regulation. Secondly, it will discuss the transfer of scraped data from
the company to EU law enforcement agencies under the regime of the Directive 2016/680/EU (the
Directive). Finally, it will analyse the compliance of the Clearview app with art 10 of the Police
Directive, which lays down the criteria for lawful processing of biometric data. More specifically,
this last analysis will focus on the strict necessity test, as defined in the Charter of Fundamental
Rights of the European Union and the European Convention on Human Rights. Following this
assessment, it will be argued that the Clearview app’s use in criminal proceedings is highly pro-
blematic in light of the EU legislation on privacy and data protection.
Keywords
Facial recognition, data protection, privacy, surveillance, GDPR, Directive 2016/680/EU
Corresponding author:
Isadora Neroni Rezende, Universit`
a di Bologna, Dipartimento di Scienze Giuridiche, Via Zamboni 27/29, 40126 Bologna,
Italy.
E-mail: isadora.neroni2@unibo.it
New Journal of European Criminal Law
2020, Vol. 11(3) 375–389
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/2032284420948161
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