By Nadia Dreid

Law360 (May 5, 2020, 7:59 PM EDT) -- A senior Democratic lawmaker has continued to press an artificial intelligence company that has reportedly offered its facial recognition software as a "contact tracing" tool to track the spread of the novel coronavirus, asking it to verify that its technology works and does not pose an undue threat to U.S. citizens' privacy.

Sen. Ed Markey, D-Mass., sent a third letter to Clearview AI Thursday saying his concerns were compounded by the news that the company — which had already been marketing its tools to law enforcement before the pandemic struck — was now offering its facial recognition software for contact tracing. Markey set a May 14 deadline to receive answers from the company.

Despite the potential contract tracing holds for combating the coronavirus pandemic, Markey said Clearview had not demonstrated that its methods are effective. 

"All efforts to combat the coronavirus pandemic should be free from harmful bias," he wrote, "but Clearview has apparently not subjected its technology to rigorous accuracy and bias testing."

Bias testing would better ensure that tracking of an individual's movements does not lead others to question the subject's choice of contacts and needlessly violate the individual's privacy.

Markey said the company's answers to his previous inquiries had been insufficient. "You provided no detail" about the qualifications of ostensibly outside experts who reviewed the company's methods, he said.

"Given that your responses to my previous letter failed to address ongoing concerns about your product — particularly around accuracy and bias testing — any plans to deploy it widely to fight the coronavirus could further increase Clearview's threat to the public's privacy," the senator wrote in the letter. which was made public Monday.

Despite Clearview's claim that it has been using the same methodology touted by the American Civil Liberties Union to ensure that its technology was "free from harmful bias," the senator said, the civil rights group has said that was not the case.

The letter also expressed the senator's doubts about an independent review panel that Clearview says it asked analyze its technology, citing reports that the panel experts had no experience with facial recognition and failed to consider "something as basic as 'what happens when police search for a person whose photo isn't in the database.'"

"The steps Clearview has taken to test the accuracy of your product fail to convincingly demonstrate that your technology is free of bias and technological flaws," Markey wrote.

Markey first wrote to the company about his privacy concerns in January, after a New York Times investigation revealed that Clearview had been providing its technology to law enforcement. Its app allows users to take a photo of someone and use it to search for other images of that person online. The images the search turns up are  scraped from public sources across the web, the company says..

The senator wrote a second letter to the company in March after Buzzfeed reported that the Department of Justice and big companies like Walmart and Macy's had also been using Clearview's services.

The pressure to develop reliable mechanisms for tracking the spread of COVID-19 has been mounting as the disease continues to spread across the country.

As pressure mounts to reopen the U.S. economy and ease social distancing requirements, many experts say contact tracing of virus carriers will be key to warding off a second wave of the infections.

Until now, contact tracing has largely been left up to localities with varying results, but Apple and Google have revealed that they have plans in the works for a larger, more centralized method that would work via smartphone app. The joint venture would tap into the tech companies' vast stores of location data to tell people when they have been in close proximity with someone who has tested positive for the virus.

The companies say they would not build or run the app themselves, but would design and build the software that would make doing so possible and provide guidance to federal and local governments who were interested.

But the idea of two huge technology companies' having access to large banks of personal information spearheading such an effort set off alarm bells for many privacy advocates, despite promises from the companies that any and all data they use will be made anonymous.

Most privacy advocates, including Markey, are open to the idea of harnessing technology to stem the spread of the coronavirus, which has killed  more than 70,000 people across the country. But when it comes to using location data to trace contacts, they have generally promoted staunch legal protections to safeguards that information from being use improperly or falling into the wrong hands.

"Technology has an important role to play in mitigating the COVID-19 pandemic, but this health crisis cannot justify using unreliable surveillance tools that could undermine our privacy rights," the senator said.

Representatives for Clearview AI and Markey did not immediately return requests for comment.

--Editing by Peter Rozovsky.

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