ICE has powerful facial recognition app Illinois cops are barred from using — with little apparent oversight

The Trump administration has wiped a facial recognition policy from its website while further embracing the controversial technology and securing a $9 million contract with a company barred from selling to Illinois law enforcement agencies.

The ban was the result of a lawsuit filed in Cook County that alleged Clearview AI’s massive database of photographs pulled from across the internet violated a landmark state law protecting people’s personal information.

But a settlement of the case didn’t apply to federal law enforcement agencies, including the Department of Homeland Security and its immigration agents. ICE has long been monitoring immigrants in Chicago using facial recognition technology.

Clearview — described by an attorney who sued the company as “one of the largest threats to personal privacy” — can be used in Chicago by federal authorities carrying out President Donald Trump’s deportation campaign.

The FBI, Army, US. Marshals Service and Department of Homeland Security currently hold nearly $10 million in contracts with Clearview, whose current chief executive reportedly has close ties to Trump allies.

Immigration and Customs Enforcement is using the largest contract — worth up to $9.2 million — to identify victims and perpetrators of child sex crimes, as well as people suspected of “assaults against law enforcement officers,” records show.

The contract began Sept. 5, days before ICE launched its aggressive immigration enforcement operation in the Chicago area known as “Midway Blitz.” As agents fan out across the city and suburbs, there’s no federal law governing the use of facial recognition technology and apparently little to no restrictions.

A facial recognition policy implemented under former President Joe Biden was removed from the DHS website shortly after Trump took office, according to an oversight body’s report, which said it’s unclear whether the policy still applies or is being updated.

A DHS spokesperson claims the policy remains in effect, but it still can't be found online. Web pages that mention the policy have been wiped or archived. “In an effort to keep DHS.gov current, the archive contains outdated information that may not reflect current policy or programs,” some of the pages say.

The DHS spokesperson says the notices "simply reflect standard web-management practices to prevent outdated materials from being presented as current; they do not represent a change in policy. DHS continually reviews issuances to strengthen clarity and accuracy."

Sen. Dick Durbin, D-Illinois, raised concerns about the potential rollback of protections and oversight.

"I find it appalling that the Trump Administration is attempting to silently revoke previous guidance that was put in place to protect our privacy and due process rights,” Durbin says. “We need answers on how and why the Trump Administration is using surveillance technology, such as what is provided by Clearview AI, especially as DHS continues to ruthlessly carry out cruel, excessive immigration raids and detain both immigrants and U.S. citizens.”

The Biometric Information Privacy Act

The Cook County legal settlement barring most businesses, entities and state law enforcement agencies from using Clearview stemmed from a lawsuit filed in May 2020 by the ACLU of Illinois and other advocacy organizations.

The lawsuit claimed the company was violating the Biometric Information Privacy Act, which requires people to consent to the collection and use of their personally identifying information such as fingerprints or face scans.

In March, a federal judge in Chicago approved another settlement to resolve a class-action lawsuit brought by people who claimed their biometrics were illegally scraped from the internet and used without their approval.

U.S. District Judge Sharon Johnson Coleman created a novel settlement structure to resolve the class-action suit for thousands of potential plaintiffs.

They could get a possible 23% stake in Clearview that would be paid out based on a variety of factors, including if the company goes public or is liquidated. The company was valued at $225 million, putting the stake at $51.75 million.

In addition to the $9.2 million Clearview is now getting from ICE, the company has these contracts:

• $407,000 for the FBI to “reduce crime, fraud, and risk in order to make communities safer” in New York City.
• $95,000 for the U.S. Marshals Service for “apprehending fugitives” in Springfield, Virginia.
• $75,000 for the U.S. Army at the Fort Bragg military installation in North Carolina.
• $30,000 for Customs and Border Protection at the Spokane Sector in Washington state.
• $15,000 for Customs and Border Protection at the Yuma Sector in Arizona.

A company spokesperson didn’t respond to questions.

Clearview allegedly tied to alt-right ideology

One of the cases consolidated to create the class-action suit was filed in California.

It claimed the company’s founder, Hoan Ton-That, and others associated with Manhattan-based Clearview had “longstanding ties to the alt-right, a far-right ideology based on the belief that white identity is under attack.”

Ton-That now works as chief technology officer for Architect Capital, a San Francisco-based financial firm. Reuters reported that Ton-That was replaced in February by Richard Schwartz, former New York Mayor Rudy Giuliani’s onetime adviser, and Republican megadonor Hal Lambert.

The suit was originally filed in Alameda County court in California by a group of advocates who said they didn’t consent to have their biometric information harvested. It alleged the company was tied to a “pizzagate” conspiracy theorist, a neo-Nazi hacker and a man who marched during the deadly “Unite the Right” rally in Charlottesville, Virginia.

According to the lawsuit, Charles Johnson, a Holocaust denier and purported Clearview co-founder, had allegedly made a Facebook post about “building algorithms to ID all the illegal immigrants for the deportation squad.”

Johnson was pushed out of Clearview and ordered to pay $71 million in July after he was sued for allegedly posing as an intelligence agent as part of an extortion scheme targeting Lambert, Clearview's co-chief executive officer, and his investment management firm.

Facial recognition ‘threatens privacy’

For years, Democrats in Washington have unsuccessfully tried to place limits on facial recognition technology.

Rep. Ted Lieu, D-Calif., introduced legislation in July that would bar law enforcement officials from using “facial recognition to enforce the immigration laws of the United States or share facial recognition data with other agencies for the purposes of enforcing the immigration laws of the United States.”

The legislation was referred to both the House Judiciary and Science, Space, and Technology committees, which are controlled by Republicans.

On Jan. 16, four days before Trump returned to office, DHS officials announced what they described as “the most extensive requirements” of any federal agency to ensure facial recognition was “used properly.”

The next month, the agency removed the text of the underlying policy from its website, according to the Privacy and Civil Liberties Oversight Board, the independent agency that questioned the move in May. By then, Trump's administration had effectively whittled the watchdog group down to a single Republican member.

Jeramie D. Scott, senior counsel at Electronic Privacy Information Center, a Washington-based nonprofit focused on civil liberties and privacy, says “it’s very unclear what the policy is, or if there even is a policy that’s in effect with respect to DHS’ use of facial recognition technology.”

“ICE is now seemingly using it without any guardrails to identify anyone they deem suspicious,” Scott says. “This is what dystopian nightmares are made of, this kind of continual expansion of surveillance without any real oversight or restrictions.”

Meanwhile, the uphill battle to curtail the use of facial recognition has only gotten steeper.

In September, nine Democrat senators wrote to acting ICE Director Todd Lyons to question him about an app known as Mobile Fortify, which they said “reportedly allows agents to point a smartphone at an individual’s face or fingerprints and identify the individual based on a biometric match against several federal databases.”

Videos of masked agents scanning people with cellphones have begun cropping up on social media.

The Mobile Fortify app is part of a growing arsenal of tools the feds have to vet whether someone is in the country without legal status, including iris scanning, the use of license plate readers, and fingerprint matches between a DHS database of immigrants removed from the United States and an FBI database containing fingerprints from arrests by the Chicago Police Department and other local law enforcement agencies.

"Facial recognition technology is often biased and inaccurate, especially when used against communities of color," says Sen. Edward J. Markey, a Massachusetts Democrat who signed the letter and has introduced legislation aimed at regulating facial recognition.

"The use of this technology against protesters and private citizens is concerning, dangerous, and is not just a threat to privacy, but foments a threat on democracy itself."