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Abstract

The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written about harmful use by private actors. This Article helps fill that gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create “faceprints” for inclusion in FRT databases violate the First Amendment rights of the private actors creating these databases.

In May 2025, a multidistrict litigation against Clearview AI, a FRT company, offered an opportunity to answer that question, but the parties settled. The court, however, noted that the “settlement agreement leaves unresolved the question that motivated this multidistrict litigation: whether the collection of publicly available biometric information for use by private or government entities . . . is reconcilable with constitutional privacy rights.” This Article helps answer that unresolved question. But privacy is too narrow a framework–constitutional rights of free speech, association, and assembly are also affected.

This Article makes two claims –– one descriptive and one normative. The descriptive claim is two-fold: (1) existing First Amendment jurisprudence does not resolve the novel question of whether laws limiting private actors’ use of publicly available images violate their First Amendment rights, and (2) free speech advocates are divided on the proper response. The normative claim answers this unresolved question by concluding that some regulation of using publicly available images to create faceprints and FRT databases should be found constitutionally permissible.

Not only does this Article analyze the First Amendment arguments of FRT companies like Clearview AI, but it also introduces the other half of the story: the First Amendment interests of the faceprinted. After identifying problematic uses of FRT and showing the inadequacy of existing law, this Article makes the normative argument by engaging with three methods of constitutional interpretation, identifying First Amendment values that support regulating the use of FRT, and drawing lessons from Fourth Amendment doctrine and theory.

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