5 ms·

Oh, this is simple. Clearview AI needs to get sued for defamation or slander. In the United States, falsely accusing someone can be considered defamation or s

Oh, this is simple. Clearview AI needs to get sued for defamation or slander. In the United States, falsely accusing someone can be considered defamation or slander, depending on the circumstances. Defamation is a legal term that refers to the act of making false statements about someone that damage their reputation. If the false statements are made in writing, such as in a blog post or social media post, it is called libel. If the false statements are made verbally, it is called slander. To prove defamation or slander, the person who was falsely accused must demonstrate that the statements were false (he can), that they were published or spoken to a third party (they were -- to the police department), that they caused harm to the person's reputation (he lost a week from work and was put in jail -- not to mention countless articles that mention this fact), and that the person making the false statements acted with actual malice or negligence (they provided a service for money and didn't check their facts). Actual malice means that the person making the false statements knew they were false or acted with reckless disregard for the truth. I'm pretty sure 'reckless disregard for the truth' would be pretty easy to prove in this case -- considering Clearview probably can't say specifically why this person selected for arrest. If a person is found guilty of defamation or slander, they may be required to pay damages to the person who was falsely accused to compensate for the harm caused to their reputation. The amount of damages can vary depending on the extent of the harm and the specific circumstances of the case.

hypersoar 4y ago
My guess is that some other law or tort would be a better fit, but I'll note that the "actual malice" and "negligence" are different standards with the latter being a lower bar. The former only applies to public figures.
bigmattystyles 4y ago
I always wondered the same about credit reporting bureaus.
- mindslight 4y ago
  A fine example of regulatory capture. The "Fair" Credit Reporting Act 15 USC 1681h (e): > Except as provided in sections 1681n and 1681o of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report except as to false information furnished with malice or willful intent to injure such consumer. This country desperately needs a GDPR equivalent. One that does not except financial surveillance bureaus, the healthcare industry, or any other quasi-governmental organization that abuses our personal information.
  - bnjms 4y ago
    We need another word when the capture is beneficial to the government because it solves a quasi governmental problem which is easier without oversight.
    - jessaustin 4y ago
      This crap does not benefit any defensible purpose of government. Probably it does benefit certain government employees. The principal-agent problem appears again.
      - smcin 4y ago
        How do you define the principal-agent problem when appied to govt, though? Govt and its departments are not 'owned', and cabinet secretaries and even Presidents are not principals. Who is the 'principal': that particular govt's most powerful donors and lobbyists? Also, govt has both career and political appointees, the latter can change every 4/8 years. So seems to me there are multiple groups of agents/parties. So when you say 'does not benefit any defensible purpose of government', is that a statement about political science, rather than two-party govt system with lots of lobbying? I mean it seems like any policy you could concoct would benefit some (posibly small) interest-group of people somewhere, unless it was 100% wasteful. [0]: https://www.investopedia.com/ask/answers/041315/how-principle-agent-problem-manifested-government.asp https://www.investopedia.com/ask/answers/041315/how-principl...
darth_avocado 4y ago
You also want to sue the police department separately for wrongful arrest to keep them accountable and discourage a use of tech like this.
- bigiain 4y ago
  I would throw a few bucks towards a gofundme to pay for the legal costs for suing _both_ police departments involved here. The one who sought and got an arrest warrant based purely on facial recognition, and the one who picked him up thousands of miles away and refused to even investigate whether the original warrant could possibly apply when the guy they arrested had never even been to the city the warrant claimed he’d stolen in…
  - deleted 4y ago
    [deleted]
- fortran77 4y ago
  You can't. "Qualified Immunity". It would be nice, of course, if a good Qualified Immunity case hit our current SCOTUS. They may rule differently than past courts, if they're as principled as they purport to be.
  - KennyBlanken 4y ago
    In what universe have they shown themselves to be "principled"? Thomas's behavior, his wife's behavior? The court reversing a lot of prior decisions? The purposeful leak of one of the most important cases in the last decade?
    - the_why_of_y 4y ago
      As usual, sarcasm doesn't work well on HN.
    - fortran77 4y ago
      “As they purport to be”
tantalor 4y ago
It's going to be really easy for them to weasel out by claiming the match was like "99% confidence" or something, so not actually false per se. This is supported by the facts: "one of the alleged fraudsters looked like Mr. Reid" They can also claim their technology does not make an accusation, it provides a similarity score that LEO can use in their investigations. This is also supported by the facts: sheriff’s officer insisted it was a "positive match". The sheriff's officer actually gives up the game here, revealing they improperly relied on the similarity score to deduce a suspects guilt, but an actually competent prosecutor would know better. The fault lies with the LEO in this case. Good luck suing them.
- konschubert 4y ago
  The problem is that people's priors for "is this the same guy?" are not normalised to "we have used an AI to scan the whole country for lookalikes".
  - tantalor 4y ago
    Police already know about this. It's called a "dragnet". https://en.wikipedia.org/wiki/Dragnet_(policing) https://en.wikipedia.org/wiki/Dragnet_(policing) Since the 1950s, such "dragnets" have generally been held to be unconstitutional as unreasonable search and seizure actions. Related: https://en.wikipedia.org/wiki/Reverse_search_warrant https://en.wikipedia.org/wiki/Reverse_search_warrant
- Teever 4y ago
  Is there really that much of a difference, legally speaking between the statements "I'm pretty sure that tantalor is the zodiac killer", or "I'm 99% sure that tantalor is the zodiac killer", or "tantalor is the zodiac killer?"
  - deleted 4y ago
    [deleted]
  - mdp2021 4y ago
    > Is there really that much of a difference Certainly. If a box outputs "this, M, is the best matching I have to A", it takes a sloppy fool to entail that "M is A". If an OCR says that it sees some specific characters, that is not a "certainty obligation" - it is just a "best effort" through reasonable algorithms and imperfect data. You are obliged to check. The fact that some people - and workers, and with responsibility - can be confused on those basics shows the urgency on rebuilding "common sense", a civic upgrade to "good sense", in society.
im3w1l 4y ago
I don't think it's nearly that simple. Do you want the same for other techniques? If someone says in good faith that a fingerprint matches and it turns out it was a false positive it should be slander? Shoeprints? DNA? Clearview AI is providing a service in good faith like all these other things. It's up to the police and courts to use that information correctly. Furthermore notice that this guy was only arrested, and the evidence bar for arrest is lower than sentencing. I don't think we can even say the system malfunctioned here actually. He was arrested because it seemed probable he did it. That's how it's supposed to work. Then he was released and should be given routine compensation for being arrested and turning out to be innocent.
- bb88 4y ago
  I think this is why I don't think slander would work. Clearview AI didn't force the cops to arrest him, or say with 100% accuracy it was him. CVAI could have an accuracy of 99.9%, and the defense would be "Well see you were that 0.1% incorrect!" It's the police that need to do the investigation to make sure the guy arrested is the same person on the video. But then they could say too, "Well CVAI said it was a near certainty -- we just took their word for it! It would have wasted the taxpayers money to do a more thorough investigation -- afterall there's always some implicit uncertainty in standard policework!" I think a more interesting question is something like: Does Clearview AI fudge their accuracy numbers? Would the true 80% likelihood of you being the perp be more or less slanderous than a 99% likelihood?
  - alixj 4y ago
    That would be a very weak excuse from the police. The same problem occurs even with DNA testing: https://www.stanfordlawreview.org/print/article/the-rule-of-probabilities/ https://www.stanfordlawreview.org/print/article/the-rule-of-....
- JohnFen 4y ago
  > He was arrested because it seemed probable he did it. That's how it's supposed to work. Which is itself a bit of a problem, as having an arrest on your record, even in the absence of a conviction, a trial, or even if you were found innocent, is rather damaging. It adversely impacts your ability to rent housing, for instance, or get certain jobs.
maximilianroos 4y ago
> Oh, this is simple. If you're commenting on something you don't understand, maybe don't start out with this? > I'm pretty sure 'reckless disregard for the truth' would be pretty easy to prove in this case -- considering Clearview probably can't say specifically why this person selected for arrest. Sigh
- pas 4y ago
  ... for us silent(ish) ignorants could you please explain what's wrong with the comment you have responded to? thank you!
  - sseagull 4y ago
    It’s not even close to “reckless disregard for the truth”. Which isn’t even the right standard (reckless disregard for the truth/actual malice is the very high bar for defamation of public figures - regular folk have a lower bar). Reckless disregard for the truth is like still spreading lies, even though people around you are telling you otherwise, or even in the face of obvious reasons it is not true. Here, they believed a computer program that was promoted as being accurate. An average person would probably have no reason to strongly doubt it, especially if it has been correct before. If they were acting with their best intentions, based in the “facts” they had before them, defamation would difficult to prove.
    - deleted 4y ago
      [deleted]
  - Aunche 4y ago
    By the same standard, a witness who misidentified a suspect would be guilty of defamation as well.
    - pas 4y ago
      if the conditions were so bad that claiming that the suspect was so and so is absolutely unrealistic, isn't that reckless? eg. a psychic claiming they saw the suspect from 1000 miles?
jcranmer 4y ago
In US defamation law, the only answers you should ever give to "is this defamation?" are "hell no" and "...maybe..." And offhand, this is a case where "hell no" seems to be the correct answer. You're missing several things here, so let's break it down. The first, and most important thing, is that a defamatory statement must be a false statement of fact in a nonprivileged context. While "false" is easy to understand (especially given that any nitpicking gets filed under the intent bucket), "statement of fact" is a confusing thing that's basically half the lecture on defamation by itself. But one of the things that expressly isn't such a "statement of fact" is a conclusion based on disclosed facts (even if the logical reasoning used to support the conclusion is fallacious). It's also worth noting that statements in some contexts can never be defamatory--for example, legal pleadings can never be defamatory (but press conferences about legal pleadings can be!). As we apply that to this situation, I strongly doubt that any statement is actually defamatory. We don't know what the company messaged to the police department, but based on the quotation from the affidavit for the arrest warrant, the message probably was along the lines of "facial ID on this surveillance footage matched this person" (which is a true statement of fact), and any statement that moves to a conclusion that said person committed the crime would fall into the "conclusion based on disclosed fact" non-actionable statement. Furthermore, it's possible (I'd have to look up jurisprudence here) that the statement to the police officer is a context in which nothing can be defamatory. The second thing to point out here is the requisite intent. As the person in question is not a public figure, the standard here is actually merely negligence--the person making the defamatory statement essentially has to be in a position where they could have discovered that the statement was false with reasonable efforts that they failed to undertake. While it's not relevant to this case, your notion of reckless disregard is incorrect. In defamation contexts, "reckless disregard" means "entertained serious doubts of the truth of the statement." I can't really envision a plausible scenario where you could show that Clearview AI meets "reckless disregard"; even an email thread where developers talk about the false positive rate being tuned too damn high likely wouldn't qualify since it's not specifically about any individual statement they send out. The final point to make is that the burden of proof of all of this in US defamation cases is on the plaintiff. Even in the initial complaint, the plaintiff has to allege facts with some degree of specificity (and plausibility) to show that the defendant had the requisite level of intent (be it negligence or actual malice). But before all that, the actual defamatory statement needs to be alleged... and notice that we don't even know what Clearview AI told the police department. This case is very far from a slam dunk, so far that I would be very worried about facing an Anti-SLAPP motion (which would mean having to pay the defendant's attorneys as well as my own should I lose) on filing it were I the plaintiff.
fortran77 4y ago
I'm not sure this strategy will work. See Popehat on defamation or slander https://popehat.substack.com/p/can-a-tarot-card-reading-be-defamatory https://popehat.substack.com/p/can-a-tarot-card-reading-be-d...
Habgdnv 4y ago
If I write a small program using OpenCV (and maybe Unity), that tracks a pinball across a table for my personal enjoyment at home, and the police decided to utilize this technology to identify suspects, the question arises: should the aggrieved suspects sue me or the police? I mean, it's not the tool, but the user of that tool that should take responsibility. As I remember, they must be instructed that this is not a silver bullet and may make mistakes.

hypersoar 4y ago

My guess is that some other law or tort would be a better fit, but I'll note that the "actual malice" and "negligence" are different standards with the latter being a lower bar. The former only applies to public figures.

bigmattystyles 4y ago

I always wondered the same about credit reporting bureaus.

mindslight 4y ago
A fine example of regulatory capture. The "Fair" Credit Reporting Act 15 USC 1681h (e): > Except as provided in sections 1681n and 1681o of this title, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to section 1681g, 1681h, or 1681m of this title, or based on information disclosed by a user of a consumer report to or for a consumer against whom the user has taken adverse action, based in whole or in part on the report except as to false information furnished with malice or willful intent to injure such consumer. This country desperately needs a GDPR equivalent. One that does not except financial surveillance bureaus, the healthcare industry, or any other quasi-governmental organization that abuses our personal information.
- bnjms 4y ago
  We need another word when the capture is beneficial to the government because it solves a quasi governmental problem which is easier without oversight.
  - jessaustin 4y ago
    This crap does not benefit any defensible purpose of government. Probably it does benefit certain government employees. The principal-agent problem appears again.
    - smcin 4y ago
      How do you define the principal-agent problem when appied to govt, though? Govt and its departments are not 'owned', and cabinet secretaries and even Presidents are not principals. Who is the 'principal': that particular govt's most powerful donors and lobbyists? Also, govt has both career and political appointees, the latter can change every 4/8 years. So seems to me there are multiple groups of agents/parties. So when you say 'does not benefit any defensible purpose of government', is that a statement about political science, rather than two-party govt system with lots of lobbying? I mean it seems like any policy you could concoct would benefit some (posibly small) interest-group of people somewhere, unless it was 100% wasteful. [0]: https://www.investopedia.com/ask/answers/041315/how-principle-agent-problem-manifested-government.asp https://www.investopedia.com/ask/answers/041315/how-principl...

darth_avocado 4y ago

You also want to sue the police department separately for wrongful arrest to keep them accountable and discourage a use of tech like this.

bigiain 4y ago
I would throw a few bucks towards a gofundme to pay for the legal costs for suing _both_ police departments involved here. The one who sought and got an arrest warrant based purely on facial recognition, and the one who picked him up thousands of miles away and refused to even investigate whether the original warrant could possibly apply when the guy they arrested had never even been to the city the warrant claimed he’d stolen in…
- deleted 4y ago
  [deleted]
fortran77 4y ago
You can't. "Qualified Immunity". It would be nice, of course, if a good Qualified Immunity case hit our current SCOTUS. They may rule differently than past courts, if they're as principled as they purport to be.
- KennyBlanken 4y ago
  In what universe have they shown themselves to be "principled"? Thomas's behavior, his wife's behavior? The court reversing a lot of prior decisions? The purposeful leak of one of the most important cases in the last decade?
  - the_why_of_y 4y ago
    As usual, sarcasm doesn't work well on HN.
  - fortran77 4y ago
    “As they purport to be”

tantalor 4y ago

It's going to be really easy for them to weasel out by claiming the match was like "99% confidence" or something, so not actually false per se. This is supported by the facts: "one of the alleged fraudsters looked like Mr. Reid" They can also claim their technology does not make an accusation, it provides a similarity score that LEO can use in their investigations. This is also supported by the facts: sheriff’s officer insisted it was a "positive match". The sheriff's officer actually gives up the game here, revealing they improperly relied on the similarity score to deduce a suspects guilt, but an actually competent prosecutor would know better. The fault lies with the LEO in this case. Good luck suing them.

konschubert 4y ago
The problem is that people's priors for "is this the same guy?" are not normalised to "we have used an AI to scan the whole country for lookalikes".
- tantalor 4y ago
  Police already know about this. It's called a "dragnet". https://en.wikipedia.org/wiki/Dragnet_(policing) https://en.wikipedia.org/wiki/Dragnet_(policing) Since the 1950s, such "dragnets" have generally been held to be unconstitutional as unreasonable search and seizure actions. Related: https://en.wikipedia.org/wiki/Reverse_search_warrant https://en.wikipedia.org/wiki/Reverse_search_warrant
Teever 4y ago
Is there really that much of a difference, legally speaking between the statements "I'm pretty sure that tantalor is the zodiac killer", or "I'm 99% sure that tantalor is the zodiac killer", or "tantalor is the zodiac killer?"
- deleted 4y ago
  [deleted]
- mdp2021 4y ago
  > Is there really that much of a difference Certainly. If a box outputs "this, M, is the best matching I have to A", it takes a sloppy fool to entail that "M is A". If an OCR says that it sees some specific characters, that is not a "certainty obligation" - it is just a "best effort" through reasonable algorithms and imperfect data. You are obliged to check. The fact that some people - and workers, and with responsibility - can be confused on those basics shows the urgency on rebuilding "common sense", a civic upgrade to "good sense", in society.

im3w1l 4y ago

I don't think it's nearly that simple. Do you want the same for other techniques? If someone says in good faith that a fingerprint matches and it turns out it was a false positive it should be slander? Shoeprints? DNA? Clearview AI is providing a service in good faith like all these other things. It's up to the police and courts to use that information correctly. Furthermore notice that this guy was only arrested, and the evidence bar for arrest is lower than sentencing. I don't think we can even say the system malfunctioned here actually. He was arrested because it seemed probable he did it. That's how it's supposed to work. Then he was released and should be given routine compensation for being arrested and turning out to be innocent.

bb88 4y ago
I think this is why I don't think slander would work. Clearview AI didn't force the cops to arrest him, or say with 100% accuracy it was him. CVAI could have an accuracy of 99.9%, and the defense would be "Well see you were that 0.1% incorrect!" It's the police that need to do the investigation to make sure the guy arrested is the same person on the video. But then they could say too, "Well CVAI said it was a near certainty -- we just took their word for it! It would have wasted the taxpayers money to do a more thorough investigation -- afterall there's always some implicit uncertainty in standard policework!" I think a more interesting question is something like: Does Clearview AI fudge their accuracy numbers? Would the true 80% likelihood of you being the perp be more or less slanderous than a 99% likelihood?
- alixj 4y ago
  That would be a very weak excuse from the police. The same problem occurs even with DNA testing: https://www.stanfordlawreview.org/print/article/the-rule-of-probabilities/ https://www.stanfordlawreview.org/print/article/the-rule-of-....
JohnFen 4y ago
> He was arrested because it seemed probable he did it. That's how it's supposed to work. Which is itself a bit of a problem, as having an arrest on your record, even in the absence of a conviction, a trial, or even if you were found innocent, is rather damaging. It adversely impacts your ability to rent housing, for instance, or get certain jobs.

maximilianroos 4y ago

> Oh, this is simple. If you're commenting on something you don't understand, maybe don't start out with this? > I'm pretty sure 'reckless disregard for the truth' would be pretty easy to prove in this case -- considering Clearview probably can't say specifically why this person selected for arrest. Sigh

pas 4y ago
... for us silent(ish) ignorants could you please explain what's wrong with the comment you have responded to? thank you!
- sseagull 4y ago
  It’s not even close to “reckless disregard for the truth”. Which isn’t even the right standard (reckless disregard for the truth/actual malice is the very high bar for defamation of public figures - regular folk have a lower bar). Reckless disregard for the truth is like still spreading lies, even though people around you are telling you otherwise, or even in the face of obvious reasons it is not true. Here, they believed a computer program that was promoted as being accurate. An average person would probably have no reason to strongly doubt it, especially if it has been correct before. If they were acting with their best intentions, based in the “facts” they had before them, defamation would difficult to prove.
  - deleted 4y ago
    [deleted]
- Aunche 4y ago
  By the same standard, a witness who misidentified a suspect would be guilty of defamation as well.
  - pas 4y ago
    if the conditions were so bad that claiming that the suspect was so and so is absolutely unrealistic, isn't that reckless? eg. a psychic claiming they saw the suspect from 1000 miles?

jcranmer 4y ago

In US defamation law, the only answers you should ever give to "is this defamation?" are "hell no" and "...maybe..." And offhand, this is a case where "hell no" seems to be the correct answer. You're missing several things here, so let's break it down. The first, and most important thing, is that a defamatory statement must be a false statement of fact in a nonprivileged context. While "false" is easy to understand (especially given that any nitpicking gets filed under the intent bucket), "statement of fact" is a confusing thing that's basically half the lecture on defamation by itself. But one of the things that expressly isn't such a "statement of fact" is a conclusion based on disclosed facts (even if the logical reasoning used to support the conclusion is fallacious). It's also worth noting that statements in some contexts can never be defamatory--for example, legal pleadings can never be defamatory (but press conferences about legal pleadings can be!). As we apply that to this situation, I strongly doubt that any statement is actually defamatory. We don't know what the company messaged to the police department, but based on the quotation from the affidavit for the arrest warrant, the message probably was along the lines of "facial ID on this surveillance footage matched this person" (which is a true statement of fact), and any statement that moves to a conclusion that said person committed the crime would fall into the "conclusion based on disclosed fact" non-actionable statement. Furthermore, it's possible (I'd have to look up jurisprudence here) that the statement to the police officer is a context in which nothing can be defamatory. The second thing to point out here is the requisite intent. As the person in question is not a public figure, the standard here is actually merely negligence--the person making the defamatory statement essentially has to be in a position where they could have discovered that the statement was false with reasonable efforts that they failed to undertake. While it's not relevant to this case, your notion of reckless disregard is incorrect. In defamation contexts, "reckless disregard" means "entertained serious doubts of the truth of the statement." I can't really envision a plausible scenario where you could show that Clearview AI meets "reckless disregard"; even an email thread where developers talk about the false positive rate being tuned too damn high likely wouldn't qualify since it's not specifically about any individual statement they send out. The final point to make is that the burden of proof of all of this in US defamation cases is on the plaintiff. Even in the initial complaint, the plaintiff has to allege facts with some degree of specificity (and plausibility) to show that the defendant had the requisite level of intent (be it negligence or actual malice). But before all that, the actual defamatory statement needs to be alleged... and notice that we don't even know what Clearview AI told the police department. This case is very far from a slam dunk, so far that I would be very worried about facing an Anti-SLAPP motion (which would mean having to pay the defendant's attorneys as well as my own should I lose) on filing it were I the plaintiff.

fortran77 4y ago

I'm not sure this strategy will work. See Popehat on defamation or slander https://popehat.substack.com/p/can-a-tarot-card-reading-be-defamatory https://popehat.substack.com/p/can-a-tarot-card-reading-be-d...

Habgdnv 4y ago

If I write a small program using OpenCV (and maybe Unity), that tracks a pinball across a table for my personal enjoyment at home, and the police decided to utilize this technology to identify suspects, the question arises: should the aggrieved suspects sue me or the police? I mean, it's not the tool, but the user of that tool that should take responsibility. As I remember, they must be instructed that this is not a silver bullet and may make mistakes.