Facial Recognition Technology vs Privacy: The Case of Clearview AI

Abstract

In January 2020, the New York Times revealed the existence of Clearview AI, a company that had developed a facial recognition tool of unprecedented performance. Various actors were fast in declaring the loss of privacy accompanying the deployment of the application. This paper analyses how the economic motives behind facial recognition technologies challenge the established understanding and purpose of the fundamental right to privacy by the example of the EU. It argues that Clearview AI’s business model, based on the surveillance of the company’s data subjects, forcibly entails a violation of the latter’s fundamental right to privacy. The traditional vertical application of fundamental rights in cyberspace disregards the power asymmetry existing between private individuals and private companies with state-like power in the Digital Age, thus resulting in legal ineffectiveness in face of this violation. The author concludes that the most fruitful approach to safeguard privacy would be the horizontal application of the fundamental right to privacy.