The facial recognition technology that at least three GTA police forces tested may be illegal, according to one of Canada’s most powerful privacy regulators.

British Columbia’s privacy commissioner and three of his counterparts are weighing whether to launch an investigation into the threat to Canadians’ rights posed by Clearview AI, the U.S. company that makes the app. Its search engine allows police to match an image of an unidentified person against what Clearview AI claims is a database of three billion images scraped from the open web, including social media sites.

“I think it is very questionable whether it would conform with Canadian law,” said Michael McEvoy, British Columbia’s privacy commissioner.

“We would have to have a closer look, and that’s something that Canadian privacy regulators collectively are considering right now.”

The B.C. privacy commissioner is one of four in Canada with jurisdiction to investigate how private businesses collect, use and disclose personal information. The others are the federal privacy commissioner and those in Alberta and Quebec. Ontario falls under the federal private-sector privacy law.

The laws these offices enforce share a bedrock principle: businesses must obtain individuals’ consent before collecting, using or disclosing personal information, with narrow exceptions. If personal information is used for a purpose other than the one for which it was originally collected, consent must be obtained again.

“The intent here is to give individuals the right to have some sense and modicum of control over their own information. And of course, what could be more personal to somebody than their own image?” McEvoy asked.

He questioned whether Clearview AI — if its database really does contain billions of images of individuals scraped off the web without permission — meets those legal standards. McEvoy added that the four regulators have “recently” discussed the matter because the technology has the potential to impact so many Canadians.

“People should be allowed to go about their business, their life, without being under a state of constant surveillance. I don’t think Canadians want to live in that kind of society.”

Clearview AI did not respond to requests for comment on Wednesday. On its website, the company says the facial recognition tool is available to law enforcement agencies and “select security professionals.” It says the app is not available to the public.

“Clearview’s image search technology has been independently tested for accuracy and evaluated for legal compliance by nationally recognized authorities,” the website claims, without elaborating further on what authorities it is referring to.

Toronto, Halton Region and Peel Region police forces all confirmed to the Star last week that they tested Clearview AI. Toronto’s police chief was unaware the app was being used; Halton’s chief said he did know. All have since stopped using it, according to spokespersons.

The RCMP and Ontario Provincial Police would not reveal whether they have used Clearview AI.

Christian Leuprecht, a policing and technology expert affiliated with Royal Military College of Canada and Queen’s University, agreed that Clearview AI likely contravenes Canadian law by the way it scrapes the pictures — and that a Canadian citizen’s reasonable expectation of privacy has “very likely been violated in the process here.”

Because of that, law enforcement’s use of Clearview AI might jeopardize the prosecution of criminal cases.

“There’s a high risk that if they either introduce that evidence or it turns out that that evidence was a determinant in the way the case ended up evolving, that that would be turfed from court and the entire case could collapse,” Leuprecht said.

It’s not known whether the use of Clearview AI directly resulted in any arrests. In Peel Region, a spokesperson said the technology was never used on an active investigation, while in Halton, a spokesperson did not respond to the Star’s questions about whether arrests were made as a result of the force’s use of the tool.

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Asked the same question, a Toronto police spokesperson said late last week that they are conducting a comprehensive analysis of every time the tool was accessed by investigators and that police would provide more information at a later date.

But the revelation that local police have been testing the technology has left criminal lawyers wondering what the implications could be for their clients.

Jill Presser, who co-chairs the Criminal Lawyers Association’s committee on law and technology, said she’s unclear what, if any, obligations Crown prosecutors would have to disclose evidence of the use of Clearview AI in court.

“Particularly if the tool is one of a number of investigative tools used and it isn’t essential to a narrative of how the investigation unfolded, we may never know,” she said.

“That’s a major part of what’s so troubling.”

Ontario’s privacy commissioner, Brian Beamish, said he is reaching out directly to the Ontario Association of Chiefs of Police this week.

“Until we have thoroughly reviewed Clearview AI and any other biometric solutions that have the potential to gather information about people who aren’t under any suspicion, police services must refrain from their use,” Beamish said in a statement.

He added that he supports the use of technologies by police to enhance community safety — provided that they are used transparently and in a way that respects the privacy rights of citizens.

“I would have serious concerns about a law enforcement service that used this kind of tool without fully considering the public interest — that means thorough privacy impact assessments, public consultation and full transparency about what kind of data is collected by the technology and how they propose to use it.”

The federal privacy commissioner’s office said the RCMP has committed to consulting with it in advance of using any facial recognition technology, in the form of a privacy impact assessment. The RCMP “has not yet submitted” any such assessment, a spokesperson said.

“Broadly speaking, our office has identified facial recognition as having the potential to be the most highly invasive of the current popular biometric identifying technologies. Faces have been transformed into electronic information that can be aggregated, analyzed and categorized in unprecedented ways.”

Of the police forces in major municipalities that the Star contacted, spokespersons for forces in Vancouver, Edmonton, Halifax, Barrie, York Region and Niagara Region said they do not use Clearview AI. Montreal police and Windsor police would not confirm whether they used it. Durham Regional Police have not yet responded.

Wendy Gillis is a Toronto-based reporter covering crime and policing. Reach her by email at wgillis@thestar.ca or follow her on Twitter: @wendygillis

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