The Globe and Mail - 22.02.2020

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A16 OTHEGLOBEANDMAIL | SATURDAY,FEBRUARY22,

Government privacy watchdogs
are teaming up to probe whether
Canadian laws are being broken
by Clearview AI’s powerful facial-
recognition software.
The rare joint investigation by
the federal Office of the Privacy
Commissioner and its three coun-
terparts in British Columbia, Que-
bec and Alberta was announced
Friday, after police organizations
acknowledged using the U.S.
company’s software.
“Media reports have stated that
Clearview AI is using its technol-
ogy to collect images and make fa-
cial recognition available to law
enforcement for the purposes of
identifying individuals,” the
watchdogs said in a statement.
“The company has also claimed to
be providing its services to finan-
cial institutions. The four privacy
regulators will examine whether
the organization’s practices are in
compliance with Canadian priva-
cy legislation.”
The watchdogs will specifically
explore whether banks have been
using Clearview AI’s technology,

said Vito Pilieci, a spokesman for

the federal Privacy Commission-

er.

Selling a technology that’s

more powerful than that offered

by its competitors, Clearview AI

markets its app by telling police

detectives that it can determine

almost anyone’s identity.

The software tries to do this by

first analyzing photos of uniden-

tified faces, and then following up

by matching them against an

enormous trove of billions of

photos that the company found

posted to popular social-media

sites.

Corporate giants such as Face-

book, Google and YouTube have

all recently filed cease and desist

lawsuits against Clearview AI,

saying that this motherlode of fa-

cial images was amassed without

the consent of the social-media

companies or their users.

Parliamentarians in Ottawa say

they may soon join in on attempt-

ing to rein in this technology.

“Clearview is operating within

a judicial and a legislative vacu-

um,” said NDP MP Charlie Angus.

In an interview, he said that he

will soon be asking a legislative

committee focused on data-pri-

vacy issues to “examine facial-

recognition technology, its use by

police and also possible misuse.”

In January, The New York

Times published an article stok-

ing privacy concerns about Clear-

view AI by exposing how police

across North America were using

the app. The company replied in a

statement saying that its product

has helped “solve thousands of

serious crimes, including murder,

sexual assault, domestic violence,

and child sexual-exploitation

cases.”

Privacy experts say Clearview

AI’s data-harvesting techniques

could well be considered illegal if

they are found to have involved

computers indiscriminately traw-

ling the internet to amass images

of Canadian citizens.

“I believe [Clearview] are in vi-

olation of Canadian privacy laws,”

said Brenda McPhail of the Cana-

dian Civil Liberties Association.

Clearview AI did not respond

to a request for comment.

Companies that amass person-

al data “have got to comply with

our privacy laws and that includes

capturing data with consent,”

said Colin Bennett, a University of

Victoria political-science profes-

sor.

Some of Canada’s biggest po-

lice and security organizations –

including the RCMP, the Ontario

Provincial Police and the Cana-

dian Security Intelligence Service

• have declined to say whether
  they have used the technology.
  Several municipal police forces
  in Ontario, however, have recent-
  ly acknowledged testing the prod-
  uct. This has led Ontario Privacy
  Commissioner Brian Beamish to
  urge police forces in the province
  to “stop this practice immediately
  and contact my office.”
  Despite this position, he is sit-
  ting out the joint investigation
  announced Friday.
  “If Ontario had private-sector
  privacy legislation, I’d be happy to
  join in this investigation,” Mr.
  Beamish said in an e-mail. But as
  things stand, “we have no juris-
  dictional premise for joining the
  investigation into Clearview.”

privacycommissionerstoinvestigateClearviewapp

Ottawa,B.C.,QuebecandAlbertaareprobingClearviewAI,whose

appisseenabove,afterpoliceorganizationsacknowledgedusingthe

company’sfacial-recognitionsoftware.AMRALFIKY/THENEWYORKTIMES

COLINFREEZE
TOMCARDOSO

An Ontario court judge has
found some sections of Canada’s
prostitution laws to be unconsti-
tutional, following a challenge
brought by the owners of a Lon-
don, Ont., escort agency that was
shut down by police in 2015.
Justice Thomas McKay ruled
Friday that the law violated Can-
ada’s Charter of Rights and Free-
doms in three respects.
The section of the law prohib-
iting advertising someone’s sex-
ual services violates the Charter
right to freedom of expression.
The section prohibiting procur-
ing or materially benefiting from
someone’s sexual services, he
ruled, violates the Charter right
to life, liberty and security of per-
son. He added that these viola-
tions are not justified under Sec-
tion 1 of the Charter, which aims
to strike a balance between the
rights of the individual and the
rights of society.
Hamad Anwar, now 30, and

Tiffany Harvey, now 28, were

charged with procuring, advertis-

ing and materially benefiting

from the sale of someone else’s

sexual services. They embraced

in court as they learned that

their charges would be stayed.

Around them, relatives wiped

away tears.

“It’s a huge relief,” defence

lawyer James Lockyer said out-

side the courthouse Friday. “And,

I think, a tremendous victory for

sex workers in Canada.”

The couple was charged in

2015, after police raided their

business, Fantasy World Escorts,

in London – a bust that was

sparked by complaints from resi-

dents about advertisements on

local bus shelters.

Two years later, they launched

a constitutional challenge – the

first real test of Canada’s prosti-

tution laws since the legislation

was revised in 2014.

In 2013, the Supreme Court

had deemed the old laws – which

included bans on street solicit-

ing, brothels and people living

off the avails of prostitution – to

be unconstitutional in that they

created severe dangers for vul-

nerable women. In response, the

federalgovernment adopted the

“Nordic Model,” which aims to

eradicate the demand for sex

work altogether.

Under the new law, known as

the Protection of Communities

and Exploited Persons Act, it is

now legal to sell sex, but not to

buy or advertise it.

Mr. Anwar and Ms. Harvey ar-

gued in their challenge that

these laws continue to endanger

sex workers by essentially forc-

ing them to work alone, without

any protections or ability to com-

municate ahead of face-to-face

meetings, outline terms and con-

ditions, or screen clients.

In response, the Crown had ar-

gued that the existing laws are

constitutionally sound, and “rep-

resent an informed response to

the complex issue of prostitu-

tion.”

In his ruling Friday, Justice

McKay wrote (paraphrasing Mr.

Anwar and Ms. Harvey’s argu-

ment) that the effect of the cur-

rent law is, “at a basic level, to

deprive sex workers of those

things that are natural, expected

and encouraged in all other sec-

tors of the economy. As a result,

sex workers, who are more likely

in need of protection than most

workers, are denied the benefits

accorded to mainstream labour.”

As the couple’s family hugged

them outside the courtroom, a

woman stood off to the side,

shaking her head. Cindy – who

said she was there for the ruling

because her daughter has been

trafficked, and asked that her last

name not be used to protect her

identity – said she was hugely

disappointed by the ruling,

which she believes prioritizes the

rights of “pimps.”

Mr. Lockyer disagrees. “This

ruling today has nothing to do

with permitting exploitation. On

the contrary, it prevents exploi-

tation by enabling legitimate re-

lationships to be set up that are

not exploitative,” he said.

Because this ruling was made

at the provincial court level, it

does not strike these sections

from the law. Nevertheless, Mr.

Lockyer said, it sets an important

precedent for judges to consider

in similar cases moving forward.

“In order for the sections to be

considered null and void, it

would have to go up to the next

level of court to the Ontario

Court of Appeal. And that’s up to

the Crown whether or not they

appeal it. That’s in their hands,

not ours,” he said. Mr. Lockyer

said he believes there is a “rea-

sonable likelihood” the decision

will be appealed. “And if the On-

tario Court of Appeal gives a de-

cision, if there was an appeal,

then ultimately one or the other

parties could take it on to the Su-

preme Court of Canada.”

Jack Gemmell, who was co-

counsel with Mr. Lockyer, said he

hopes the decision will spur Par-

liament “to reconsider the pro-

hibitionist model [in place now],

and look to more of a harm re-

duction model. It really is over-

due,” he said. “I hope this deci-

sion gets that process going.”

Asked whether Mr. Anwar and

Ms. Harvey will be getting back

into the escort business, Mr.

Lockyer said no. “I think they’ve

moved on with their lives and I

think that’s good.”

portionsoffederalprostitutionlawconstitutionallyinvalid,Ontariojudgerules

MOLLYHAYES
CRIMEANDJUSTICEREPORTER
LONDON,ONT.

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