In an era where a selfie doubles as a biometric identifier, privacy law’s goals of technological neutrality are being challenged in its applicability to modern data collection practices. Precedent setting litigation across Canada surrounding Clearview AI’s data scraping practices have revealed the issues in governing rapidly evolving technologies that vastly change the data collection landscape under existing legal frameworks.
BACKGROUND
Clearview AI’s (Clearview’s) data scraping technology collects facial image data from publicly accessible online sources, such as social media, and assigns biometric identifiers to individuals. The technology allows users of its platform, including law enforcement, to upload an image and identify individuals through a matching process with Clearview’s database. Clearview’s database contained over three billion images of faces, including a vast number of Canadians. These practices have prompted investigation from multiple Privacy Commissioners in Canada leading to litigation in several provinces and federally.[1]
In 2020, the Privacy Commissioners of Canada, Quebec, British Columbia, and Alberta (the Commissioners) commenced a joint investigation into Clearview’s data handling practices.[2] This investigation determined that Clearview (i) did not obtain the requisite consent prior to the collection of personal information and (ii) did not collect, use, and disclose this personal information for a reasonable or appropriate purpose.[3]
Clearview disagreed with the findings and asserted that the information collected was publicly available and thus exempt from consent requirements. Clearview initiated judicial reviews of the Commissioners’ investigation in Alberta, Quebec, and British Columbia. Decisions on the merits of the judicial reviews are available from the Court of King’s Bench of Alberta (ABKB), Supreme Court of British Columbia (BCSC), and Court of Appeal for British Columbia (BCCA). The Court of Quebec partially granted Clearview’s application for a confidentiality and sealing order in March 2025, but no decision on the judicial review is available at the time of writing.[4]