PRIVACY ACT 1988 - biometric Information - extra-territorial operation - whether a foreign corporation which collects images of Australians from Australian servers is carrying on business in Australia - whether requesting and receiving data hosted on Australian servers amounts to information collection in Australia - whether an image of a person's face is personal information - whether an image of a face is biometric information - whether collecting images of faces without consent is a breach of APP 3.3 or APP 1.2

Acts Interpretation Act 1901, s 2B

Privacy Act 1988, Schedule 1, s 5B, 6, 6C, 6D, 13, 15, 52

Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022, Schedule 4

Privacy Amendment (Enhancing Privacy Protection) Act 2012, Schedule 1

Campbell v Gebo Investments (Labuan) Ltd [2005] NSWSC 544; (2005) 190 FLR 209

Facebook Inc v Australian Information Commissioner & Anor [2022] FCAFC 9

Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355

Smith v Victoria Police [2005] VCAT 654

Taylor v The Owners - Strata Plan No 11564 & Ors [2014] HCA 9

Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224; (2017) 258 FCR 190

Explanatory Memorandum, Privacy Amendment (Enhancing Privacy Protection) Bill 2012

For Your Information: Australian Privacy Law and Practice (ALRC Report 108)

1. Clearview AI, Inc. (Clearview) is a body corporate incorporated in Delaware in the United States of America. In broad terms, Clearview provides a service to law enforcement agencies in certain countries which assists them to identify and locate victims and suspects in criminal investigations. The key to the service Clearview offers is its facial recognition software. Clearview has used a computer program known as a web crawler to build a database of images of faces drawn from the public internet. When the web crawler collects images, it also collects the meta-data associated with those images (in particular the website address that the image was found on).[1] Law enforcement agencies which have a relationship with Clearview can upload photos of suspects or victims and receive images from the database if the Clearview software identifies a matching image on its database. The inquiring agency is also provided with the meta-data associated with each of the matching images. The service Clearview provides has been useful in assisting law enforcement agencies overseas to identify and locate suspects and has led to arrests and convictions.
2. The service offered by Clearview became the subject of attention world-wide in January 2020 when the New York Times published an article detailing the capabilities of the Clearview system in an article entitled 'The Secretive Company that Might End Privacy as We Know It'. Unsurprisingly, this article attracted the attention of privacy regulators around the world including Australia's Office of the Australian Information Commissioner (AOIC). On 21 January 2020 the AOIC wrote to Clearview seeking information about the company and its operations with a view to considering whether it was in breach of the Privacy Act 1988 (Cth) (Privacy Act). At that point in time, Clearview's activities in relation to Australia had been limited to:

(a) offering Australian law enforcement agencies free trial use of the product, > > (b) offering Australian residents an opt-out facility that would prevent results being returned by the system if a law enforcement agency searched for their face; and > > (c) allowing the web crawler to draw images from servers which held images of Australians and from servers located in Australia.

3. Following the announcement of the investigation, Clearview ceased to offer free trials to Australian law enforcement. It also modified and ultimately withdrew its opt out facility from use in Australia. Clearview did not and has not modified how its web-crawler operates in relation to images of Australians or in relation to images held on servers in Australia.
4. After more than a year of investigation, the Australian Information Commissioner and Privacy Commissioner (Privacy Commissioner) issued a decision on 14 October 2021.[2] The Privacy Commissioner found that notwithstanding that Clearview is based in the US, did not operate an office in Australia and had not generated revenue in Australia, it had the necessary 'Australian link' for the Privacy Act to apply. [3] The Privacy Commissioner further found that Clearview:[4]

(a) Failed to comply with the requirement in Australian Privacy Principle (APP) 1.2 in Schedule 1 of the Privacy Act, to take reasonable steps to implement practices, procedures and systems relating to the entity's functions or activities, that will ensure compliance with the APPs; and > > (b) Interfered with the privacy of Australian individuals, by failing to: > > > (i) collect sensitive information about an individual only where the individual consented to the collection (and the information was reasonably necessary for one or more of the entity's functions or activities) (APP 3.3) in circumstances where no other exceptions applied to permit the collection (APP 3.4); > > > > (ii) Collect personal information only by lawful and fair means (APP 3.5); > > > > (iii) Take such steps (if any) as were reasonable in the circumstances to notify individuals of the collection of personal information (APP 5); and > > > > (iv) Take such steps (if any) as were reasonable in the circumstances to ensure that the personal information it used or disclosed was, having regard to the purpose of the use or disclosure, accurate, up-to-date, complete and relevant (APP 10.2).

5. The Privacy Commissioner declared under section 52(1A) that Clearview:

(a) Must not repeat or continue the acts and practices found to have been an interference with the privacy of one or more individuals; > > (b) Must cease to collect from individuals in Australia, images (and their machine readable analogues known as vectors) from the public internet, from law enforcement agencies and from people seeking to opt out of the system, in breach of APPs 3.3, 3.5 and 5; > > (c) Within 90 days of this determination, must destroy all images (and their machine readable analogues known as vectors) drawn from the public internet, from law enforcement agencies and from people seeking to opt out of the system that Clearview has collected from individuals in Australia; and > > (d) Within 90 days of the date of the determination, must provide written confirmation to the AOIC that Clearview: > > > (i) Is no longer collecting images as required by the declaration in paragraph 4(b) above; and > > > > (ii) Has destroyed images and vectors as required in paragraph 4(c) above.

6. The Privacy Commissioner found that the Clearview system breached the Privacy Act in a number of ways. First, when it collected images of Australians from the internet (described in the decision as Scraped Images). Second, when it converted those images into machine readable form (described in the decision as Scraped Image Vectors). Third, when it received and stored the images of suspects provided by law enforcement agencies (described in the decision as Probe Images). Fourth, when it converted those images into machine readable form (described in the decision as Probe Image Vectors). Fifth, when it stored in machine readable form the images sent in by Australians seeking to opt out of the Clearview system (described in the decision as Opt-out Vectors).
7. Clearview sought review of the Privacy Commissioner's decision in the Administrative Appeals Tribunal (Tribunal) on 3 November 2021. On 10 December 2021, with the parties' consent, the Tribunal granted an order which, subject to certain conditions, stayed the operation of the Privacy Commissioner's decision of 14 October 2021 pending a further decision by the Tribunal. The effect of the conditions and Clearview's compliance with those conditions has since become the subject of controversy, but it is not an issue I will address in these reasons.

1. Clearview's position is that it is not bound by the Privacy Act because it does not have an 'Australian link' which is essential for the Act to apply to a foreign corporation. In the alternative, Clearview contends that if the Privacy Act does apply, the Australian Privacy Principles (APPs) do not apply to it because it is a small business operator. Further, for various more specific reasons, no breaches of particular APPs are made out on the evidence.
2. The respondent maintains that the applicant satisfies the requirements for an Australian link with the consequence that the Privacy Act has at all times applied and continues to apply to Clearview. The respondent submits that the applicant has not established that it meets the turnover criterion of a small business operator, and even if it does, it falls within one of the statutory exceptions in section 6D such that it cannot take the benefit of that classification anyway. The respondent maintains that each of the breaches of the Australian Privacy Principles she found are made out on the evidence.
3. The question of the application of the Privacy Act has been complicated by the commencement of amendments to the Privacy Act on 13 December 2022 (2022 Amendments) which changed the threshold for establishing an 'Australian link'. [5]
4. In order to resolve the issues that arise in this application I will deal with them in the following way.
5. First, I will consider the threshold issues of whether the Privacy Act applies to a foreign corporation like Clearview which has no physical presence in Australia and derives no revenue from commercial operations here. The Privacy Act is expressed to have extra-territorial operation in the following circumstances:[6]

This Act...extend[s] to an act done, or practice engaged in, outside Australia and the external Territories by an organisation, or small business operator, that has an Australian link.

6. As it is accepted that Clearview is either an 'organisation' or a 'small business operator', the critical question in this context is whether Clearview has or had an 'Australian link' as that phrase is defined in section 5B(3). Clearview denies that it has an Australian link. In particular, it denies that it 'carries on business in Australia' which is the only threshold of significance following the 2022 Amendments. It also denies that it collected personal information 'in Australia' which was a relevant issue prior to the 2022 Amendments.
7. If that issue is determined unfavourably to Clearview, it is then necessary to determine whether Clearview is an APP entity. APP entities must not do an act, or engage in a practice, that breaches an Australian Privacy Principle. Clearview will be an APP entity if it is an 'organisation' as defined in the Privacy Act. The definition of an organisation involves inclusions and exclusions and provisions which then narrow the exclusions.[7] Clearview will be an 'organisation' if it is a body corporate that is not a 'small business operator'. Clearview will be a 'small business operator' if in any relevant previous financial year its turnover was 3 million Australian dollars or less. However, even if I am satisfied that Clearview's turnover was AUD $3 million or below at all relevant times, Clearview will not be a 'small business operator' (regardless of how low its turnover is) if I am satisfied that Clearview 'discloses personal information about another individual to anyone else for a benefit, service or advantage'.[8]
8. Again, if these threshold issues are determined adversely to Clearview, it will be necessary to form a view about the substantive issues:

(a) Whether the images collected by Clearview contain 'sensitive information' for the purposes of APP 3.3; > > (b) Whether any of the exceptions to APP 3.3 applied to the collection of the scraped images or scraped vectors; > > (c) Whether the applicant complied with APP 5.1 in relation to the collection of opt-out vectors; > > (d) Whether the collection of images from the public internet (the Scraped Images) and the Scraped Vectors was by unfair means within the meaning of APP 3.5; > > (e) Whether Clearview failed to take reasonable steps to ensure the personal information it disclosed was accurate for the purposes of APP 10.2; and > > (f) Whether Clearview failed to take reasonable steps to implement practices, procedures and systems related to its functions or activities that ensured it would comply with the APPs for the purposes of APP 1.2.

9. When considering these questions, it is necessary to consider whether Clearview has breached the Privacy Act at three different points in time. The first is the period in which the Clearview system was being trialled for free by various Australian law enforcement agencies. These trials ran from approximately October 2019 to March 2020. The second period is the period after the termination of these trials when Clearview's Australian related activity consisted of continuing to acquire images off the public internet using its web crawler and (for some of the period) continued to offer an opt-out system in Australia. In this period there were no measures in place to prevent Clearview's web-crawler from acquiring the images of Australians or acquiring images from servers located in Australia. The third period to consider is the period after the Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022 (2022 Amendments) became law. The 2022 Amendments lowered the threshold for a finding that an organisation had an Australian link, by removing from the definition of 'Australian link' the requirement concerning the collection or holding of information in Australia. The Amending Act became law on 13 December 2022.
10. As the facts concerning Clearview's activities and the requirements of the legal framework differ across these time periods, it is appropriate to consider them separately.

1. The evidence before me consists of the following:
   • Section 37 Documents dated 19 April 2022
   • Supplementary section 37 documents dated 22 November 2022
   • Witness Statement of Mr Ton-That dated 7 July 2022 (Exhibit A1)
   • Witness Statement of Mr Ton-That dated 8 December 2022 (Exhibit A2)
   • The cover, title pages and Chapters 1 and 3 of HTTP: The Definitive Guide (Exhibit A3)[9]
   • A short video prepared by the applicant (Exhibit A4)
   • Clearview AI Pty Ltd License Agreement dated 9 January 2020 (Exhibit A5)
   • An affidavit of Laura Rose Butler dated 2 September 2022 (Exhibit R1)
   • A bundle of material referred to in the respondents determination (Exhibit R2)
   • Chapter 9 of HTTP: The Definitive Guide (Exhibit R3)[10]
   • Email from Alerts@Crimedex.com dated 13 November 2019 (Exhibit R4)
   • Report of the Office of the Privacy Commissioner of Canada entitled 'Police use of Facial Recognition Technology in Canada and the Way Forward (Exhibit R5)
2. Oral evidence was given at the hearing of this matter by Cam-Hoan Ton-That. The respondent had an opportunity to cross examine him.

1. The facts concerning how the Clearview facial recognition system operates are largely uncontentious. Clearview provided two statements from its founder and CEO Mr Ton-That which describe in reasonably clear terms how the system works and how it interacts with computers and servers based in Australia. These statements provide the foundation for my findings about the workings of the system. The basic operation of the system was not a matter of any significant dispute at the hearing.
2. Some of Mr Ton-That's evidence was more controversial. In particular his evidence about the processes in place before access was given to the Clearview system. I was satisfied that in some of that evidence, Mr Ton-That exaggerated the level of formality in the company's processes - for example he claimed to personally authorise each customer's access to the system when that was clearly not the case -but I was unable to identify in his evidence any significant departures from the truth about the company's systems.
3. Mr Ton-That also gave evidence about Clearview's turnover. He did so with a view to establishing that the company was a small business operator. The evidence was unconvincing. It initially consisted of a single answer to a leading question about the turnover of the company in US dollars.[11] It became clear on further questioning by the Tribunal that Mr Ton-That was relying on company accounts which had a fiscal year from 31 January 2021 to 31 January 2022 which is not the same as a financial year in the Privacy Act.[12] In relation to the company's performance since January 2022 it was clear that the company prepared quarterly revenue accounts, but when queried about what these might disclose Mr Ton-That said 'I wouldn't know'.[13] There was clearly better evidence available in the form of financial statements available to the applicant to establish what its turnover was and that it met the threshold requirements. In those circumstances, I am not prepared to accept that the company stayed below the turnover thresholds and thus met the requirements to be a small business operator.
4. In relation to other issues, I generally regard the contemporaneous primary documents as providing an accurate picture of what took place at any given time. On specific matters, I consider that such documents provide evidence that in most cases is more accurate than what might be recalled by Mr Ton-That. There was no suggestion that any of the documents relied upon by the respondent were fabricated in any way, although how they were interpreted did on occasion become a question of contest - where necessary I have noted any controversy in the course of my fact finding.

1. I find the following facts have been established. To the extent that any of the findings are controversial I identify the evidence on which the conclusions are based.
2. My findings are structured in three sections:

(a) Findings about the operation of the Clearview system generally; > > (b) Findings about the Clearview free trials offered to Australian law enforcement agencies; and > > (c) Findings about Clearview's connection with Australia following the termination of its free trials and the closure of its opt-out system.

1. Clearview is a privately owned company incorporated in the state of Delaware. None of its staff are located in Australia. Clearview is the owner and controller of the website located at https://www.clearview.ai/ .
2. Clearview was founded by Mr Ton-That and he is currently CEO of the company. Mr Ton-That wrote the original code for the "Crawler Program" (described further below as a web-crawler) which is a significant component of the Clearview system.
3. The Clearview System is a tool that analyses images published on the internet in common formats such as TIFF, JPEG, GIF, PNG. Clearview's founder describes the Clearview System in the following terms and I accept that this description is accurate.

Clearview maintains software programs called "crawlers", which automatically visit public web pages and catalogue information from those pages. Clearview's "open web crawler" automatically visits sites based on whether a website adopts a "robots.txt" setting which allow a site to be crawled by search engines. All search engines use crawlers, and many other services, such as price comparison sites and internet archival services, also use crawlers to help render the Internet searchable. > > Clearview's "crawlers" run on servers operated by Clearview outside Australia. > > Clearview's "crawlers" use the standard internet communication protocol, HTTP to communicate with servers connected to the public internet. In accordance with HTTP, Clearview's "crawlers" send requests to servers containing public internet pages; and the servers containing those pages send responses back to the crawler fulfilling each such request. This means that any information obtained by use of the Clearview "crawlers" is sent by the server on which the information is published on the internet to a Clearview server outside of Australia. > > Neither Clearview's "crawlers", nor any other applications operated by the Applicant, causes any executable code to be installed or executed on those servers on which photos are published. > > The Clearview System, uses a machine learning algorithm to detect a human face in an image, such that it will detect published images of human persons, and of non-human yet human-like faces (such as the Luna Park entrance and Mickey Mouse) but will not typically detect a dog, for example. The algorithm will also detect faces in pieces of art or cartoons, but relevantly, it will not detect a road sign, street sign, block of text or non-facial aspect of an image in which it detects a face. > > When Clearview's crawlers collect an image from the internet, that image is saved on an image database (Image Library). This process does not leave or embed any form of "cookie" or tracker on the site or server which published the image. The only information collected by Clearview's crawlers is the publicly available image and the internet location of each saved image (being a Uniform Resource Locator or URL) [colloquially called a web address]. > > For clarity, the URL information is stored separately from the Image Library. It is stored in a metadata database, which does not include the actual images that comprise the Image Library. The metadata database contains only records of the URL for each saved image in the Image Library. > > Accordingly, the Image Library is an accumulation of images published on public websites limited to those images accessible by all ordinary users of the Internet. No image in the Image Library was collected from a website that required a password to be provided, nor from a website requiring any security or firewall to be passed. Images identified and saved to the Image Library are hosted on Clearview's servers. > > Once an image is deposited into the Image Library, the Clearview System draws a "vector", derived from that part of the image that contains facial features. This vector is not a "map" in the sense of being a blueprint, or other graphic representation capable of being recognized by a human as depicting a face, or even the relationship between facial features. The vector is more accurately described as a "digital array" - being a collection of data values decipherable...only by a computer. Specifically, they are numerical values representing coordinate sets in a 512-axes coordinate plane. > > ...all vectors created by the Clearview System are "digital arrays" incapable of being used by humans in the form in which they are created. ... > > The vector associated with the facial features in an image is then deposited into a separate database of vectors (Vector Database). The Vector Database is, in essence, an unstructured "data pool" that cannot, itself, be searched by an individual. That is, the Vector Database is not a collection of accessible images. It is a digital facility in which data (incapable of being deciphered by humans) is stored. > > More specifically, unique identifiers are assigned to each vector within the Vector Database. These unique identifiers are a string of approximately 32 characters. > > Each of the Image Library and the Vector Database are hosted on Clearview's servers. The creation of a vector also takes place within the Clearview System, likewise on Clearview's servers. Relevantly, these servers are not located within Australia. > > The Clearview System "functions" when it receives a "search request" from a user. That is, a user who has been granted access to the Clearview System uploads an image [Probe Image] that they wish to compare against images in the Image Library... > > The Probe Image is transmitted to Clearview's servers and retained on those servers only as part of the search history of the user who uploaded it. The Probe Image is not loaded into the Image Library. No 'cookie' or tracker is embedded onto a user's system in the process of uploading a Probe Image. > > A vector is created from the probe image in the same way as from images in the Image Library. The Clearview System then uses a neural-net, machine learning algorithm to compare the data comprising the Probe image vector to the data stored in the Vector Database. This algorithm has been programmed and "trained "to analyse the sets of data that comprise the digital arrays we refer to as vectors, and to identify "nearby" or similar vectors within the data. That is, the comparison is not between one image and another, or between any identifiable facial features, it is between sets of computerized data. > > For a search request to be successful, a vector stored in the Vector Database must be identified by the algorithm as being sufficiently similar to the vector of the Probe Image (Matching Vector). If a Matching Vector is identified, the Clearview System returns a list of the unique identifiers in the Vector Database which correspond to the Matching Vector. The unique identifier allows the Clearview System to access the image in the Image Library from which that Matching Vector was derived (Matching Image). > > The Matching Image is then provided to the user who issued the original search request. It is possible that more than one Matching Image is identified and provided. The user is also provided with the metadata that was collected by the crawlers at the time the matching Image was deposited into the Image Library, being the URL of the website from which the image was collected. > > ...Once the Matching Image is provided to the user, any further action is taken by the user outside of the Clearview System. To the extent that a user then undertakes to identify a person depicted in the Matching Image, that can only be achieved if a user visits the URL associated with the matching Image and exercises their own judgment as to what, if any, additional information on that website may be used to identify the person in question.

4. A small proportion of the images scraped from the internet contain metadata about the image. Information such as the type of camera which took the photo, the date and time the photo was taken, and the location where the photo was taken can sometimes be embedded in the image. This data is stored within the image in the Image Library.
5. Mr Ton-That gave further evidence about the workings of the "Crawler Program" in a statement lodged with the Tribunal on 8 December 2022. How the "Crawler Program" works is relevant to the question of whether Clearview collects information in Australia. A more detailed picture of the workings of the "Crawler Program" emerged during questioning at the hearing.
6. Paraphrasing Mr Ton-That's evidence, I am satisfied that the Crawler Program is not a program that enters another's server and explores what is on that server. It works by sending from Clearview's home server (a Clearview computer based outside Australia) an 'open link' instruction. This is the same instruction that is sent by a computer when a human clicks on a link to open a web page. The obvious difference is that the request to open is done by a computer programmed to make the request. The instruction to open the link sent by the Clearview computer (and any human seeking to open a web address) is known as a GET request. A GET request is a Hypertext Transfer Protocol command for requesting data from a remote server. When used by the Clearview System a request is made to the remote server to send data and that is all. It has no other effect on the data on the remote server.
7. A GET request asks the remote server to publish to the Clearview server the information that is available from the relevant web address. The remote server then sends to the Clearview server a digital stream which is published as a temporary file on the Clearview server. In his statement Mr Ton-That makes clear:

What the "Clearview AI crawler" crawls are web addresses. The Clearview AI crawler crawls across web addresses and sends to those web addresses an "open link" GET Request instruction; the "crawler" is only a search engine for web addresses, not a program that "interrogates" any Remote Server.

8. After a successful response from a Remote Server to a GET Request instructions, the Clearview server "sees" information sourced from the remote server and the information within it. The Clearview server using GET requests cannot run any remote code on the remote server, it can only request information.
9. Only when the information is received by the Clearview server can the Clearview system analyse that published information. It is only within the confines of Clearview's server that any analysis of the webpage information can be done.
10. This is significant in the present matter because the interactions between Clearview and any web address hosted on an Australian server is minimal. A message is sent from the Clearview server. It is reacted to by the server in Australia resulting in the sending of information to the Clearview Server. The digital stream sent constitutes the web page at that URL address to which the GET request was sent. In terms of what occurs within the geographical area constituted by Australia and its external territories, I am satisfied that it is restricted to the receipt of a data packet requesting the information and the server in Australia reacting and sending a data packet to the Clearview server.
11. Mr Ton-That confirmed in his evidence that the web crawler does not embed tracking cookies onto the computers of persons to which the GET command is sent, nor are cookies embedded onto the sites of persons who view the Clearview website. Clearview did not use cookies or analytics in 2019 or 2020 and so no Australian user of the website had their use of the website logged during this time.
12. It is however worth noting that even if Clearview never embedded cookies on Australian computers, it is accepted by Clearview that if its crawler interacts with an Australian based computer, that computer will publish to the Clearview server outside Australia information held on an Australian computer. In short, data which originates in Australia ends up being incorporated into the Images Library held by Clearview overseas. No express consent to do this is obtained by Clearview.

Findings about the Clearview free trials offered to Australian law enforcement agencies

1. The image identification service offered by Clearview is not available to the general public.[14] Potential users need to fill out an order to request a trial of the Clearview System. At present, a user will not be granted access to a trial unless that prospective user is part of a government agency, however in the past private companies including Department stores and casinos were given access to the system.[15] As at March 2020, Clearview's clients included US state and local law enforcement agencies, federal law enforcement agencies and sheriff's offices.[16]
2. The system was first launched in late 2018 and use of the system spread as a result of satisfied users recommending the system to others. From 2018, Clearview promoted the spread of the product by making free trials of the product available to prospective users. Clearview offered free trials to thousands of officers and employees at more than 1800 US taxpayer-funded entities. The system itself was set up to encourage referrals by allowing users to invite other users using tools available within the Clearview System. Law enforcement officers trialling the system would receive an automated email suggesting that the user invite other users. An 'invite user' button was provided to make this easy to do. If that button was pressed and a prospective users email entered, an invitation email would be sent to the prospective user. The email would make it easy for the prospective user to commence the process of getting access to the system.
3. At the Clearview end, between 2018 and early in 2020, when a request for access was received, there were still manual processes which needed to be followed to grant access. When the requests to use came in from a prospective user, Clearview vetted the people making contact to ensure that they were from a law enforcement agency. If they were, Clearview would set up a trial account.
4. In October 2019 a US user of the Clearview system discussed the product at an international law enforcement event. He described how successful it had been in helping to solve crime. As a consequence, Clearview began to receive inquiries from agencies outside the United States. Following those inquiries free trials were offered to law enforcement agencies and government organizations from 24 countries outside the United States, including Australia.[17]
5. An analyst working for the Queensland Police Service attended the event where the Clearview system had been discussed.[18] He identified the system as potentially useful in victim identification but also in solving major crime. He forwarded on information about the service to others in the Queensland Police Service.[19] Despite the fact that granting access to the system had some manual elements, it is clear from correspondence that at that point in time, if a user of the service invited someone else to trial it, the process for providing access was quick. It could take as little as ten minutes.[20] Other police services in Australia were soon trialling the product. The trials appear to have been conducted between October 2019 but had ceased by 12 March 2020.[21]
6. When the Queensland Police Service was trialling the Clearview system, it uploaded multiple target images.[22] Usage by the Queensland Police established that the system was capable of identifying the face of specific Australians and providing up to ten relevant matches from its Image Library along with the available meta-data.[23]
7. Between 2 December 2019 and 22 January 2020 members of the AFP-led Australian Centre to Counter Child Exploitation (ACCCE) registered for a free trial of the Clearview facial recognition tool and conducted a limited pilot of the system in order to ascertain its suitability in combatting child exploitation and abuse.
8. At the same time, a small number of Victorian police email addresses were registered with Clearview as an initial exploration of the technology. Stock images were uploaded to the Clearview system by members of the Victorian Police to trial the efficacy of the software. The software was not considered suitable and operational use of the platform ceased.
9. The South Australian Police trialled the product and uploaded somewhere between 11 and 50 images.
10. No Australian law enforcement agency proceeded with use of the system beyond a free trial.
11. In an affidavit prepared by Mr Ton-That he describes the on-boarding process that applied from 2019 to around mid-2020. It was in this period that Australian law enforcement agencies expressed interest in using the system and undertook free trials in relation to it. It is described as follows:

The 'old onboarding policy' (from 2019 to about mid 2020) operated as follows:

1. If Clearview AI received an application to access and use the Clearview AI system (including by "trial") I personally (either at first instance or subsequently at managerial meetings) would:
   1. Vet the inquiry to determine if it was on behalf of official (Government sanctioned) "Law Enforcement" or other Governmental agency, and also that the system was applied for to be used with that agency's authority;
   2. Once authority referred to at 12.a.i.1 was established (for which I would rely on information supplied by the Law Enforcement/Government agency,) I personally would give access to the Clearview AI system by opening a trial account through the use of a "user name and password" key and with the issuance of trial terms and conditions:
2. Should an authorised trial proceed to a "sale", then on "purchase" (which operates by "subscription") there would be the issuance of subscription terms and in that process, there be a legal determination that the Law Enforcement/Government agency had properly granted authority to enter the sale terms, noting that the terms and conditions contain representations and warranties etc. The determination of proper authority would typically consist of a formal letter from an appropriate officer of the Government.

1. When Mr Ton-That was questioned about this evidence at the hearing, it became clear that this did not accurately capture the process. He did not 'personally' give access to the system. In his words 'some members of our sales team would also...add the accounts'. On further questioning it became clear that any member of the sales team could give a person access to the system.[24]
2. When a person was invited to try the Clearview system, they would be sent an email with a link marked "Try it out for free".[25] If the person clicked on that link they would be prompted to supply further details including their name, email address and employing department.[26] The request for access would then go into a queue. Once in the queue someone on the Clearview team would decide if the request looked legitimate and they would put the person's email into the Clearview system and authorise it to give the person an account.[27]
3. They would then receive an email inviting them to activate their account.[28] If the person clicked on the activate account button, they were invited to create a password and when that was done they received an email on how to use the Clearview system.[29] That email gave the following three tips on using the Clearview system. For present purposes the most relevant are the following:
   1. Refer your colleagues. The more people that search, the more successes. We want to make this advanced technology available to as many investigators as possible. If you think your colleagues might want to try Clearview out for themselves, just send their names and e-mail addresses to help@clearview.ai and we'll sign them all up too.
   2. Get Clearview for the long haul. If you like Clearview at the end of your trial period and it's helping you solve cases, put us in touch with the appropriate person at your organization who can proceed with procurement.
4. Mr Ton-That accepted that the marketing was:

...something like Netflix, you allow people to use the service for a while and hope they find it so compelling they're willing to pay to keep using it.

5. He also accepted that this was a very effective means of promotion of the system and agreed that:

The company's most effective sales technique was offering 30 days free trials to officers, who then encouraged the requisition departments to sign up...[30]

6. This technique was effective at promoting the product inside and outside of the United States. I am satisfied that the expansion in the use of the Clearview system outside of the United States was not accidental but part of a deliberate business strategy. A Clearview employee attended a conference in Canada in late 2019.[31] At that point in time it was the company's plan to offer a product that could be used world-wide.[32] The Royal Canadian Mounted Police were signed up as a customer in late 2019.
7. On 19 December 2019 a contractor working for Clearview made contact with an AFP officer who was in the process of getting access to the Clearview system. The Clearview contractor, Ms Garrison, provided the AFP officer with 'general info and sample success stories and a doc with some tips on how to best use photos.' She also offered a 'video demo' if the officer would find that helpful.[33] Mr Ton-That accepted that Ms Garrison, in doing this, was promoting the Clearview service to the officer concerned.[34]
8. In this period, Clearview also engaged in other marketing activities including activities in Australia. These are described in the following terms in responses to UK authorities:

Clearview AI has from time to time placed online advertisements or other advertisements on email lists that are primarily targeted at law enforcement and security personnel in the United States...an initial review of our records showed the following occasions where advertising emails were transmitted to persons outside the United States...

9. On the list which followed was an email sent on 13 November 2019, to users of Crimedex.com (an online network of fraud loss prevention and law enforcement professionals around the world) in the USA, Canada, UK, Australia and the International Association of Financial Crime Investigators.
10. I am satisfied that the inclusion of Australian members of Crimedex in targeted emails was the result of a decision to market Clearview's system to law enforcement agencies in Australia. It is unclear whether that decision was made personally by Mr Ton-That[35] or an employee on his sales team, but I am satisfied that Mr Ton-That was aware of Australian law enforcement interest in the Clearview system and was supportive of efforts to promote it to them.[36]
11. Mr Ton-That made personal contact with a detective in the Queensland Police Service in December 2019. He contacted him by email initially[37] and then spoke to him on the telephone.[38] In making contact Mr Ton-That was seeking to make the service better for users in Australia - as Mr Ton-That explained 'we love our customers'.[39] Mr Ton-That had no specific memory of the conversation, however there is a document which purports to record the substance of the conversation being an email from a member of the Queensland Police to another member.
12. In the absence of Mr Ton-That having any specific recollection, I am prepared to accept that what was recorded accurately represents what was said in the conversation between Mr Ton-That and the police officer. In making this finding I note that it was written just over 24 hours after the conversation with Mr Ton-That took place. It is written for an official purpose by a policeman, and it includes other information which is accurate.[40]
13. In those circumstances I am satisfied that in the course of the call between Mr Ton-That and the policeman, Mr Ton-That told the member of the Queensland Police Service that Clearview was 'only selling licenses to investigators from the 5-Eyes countries'. The '5-Eyes' reference is to the intelligence sharing community consisting of the United States, the UK, Australia, New Zealand and Canada. That representation carried with it two implications. The first is that Clearview had a short list of countries where it was willing to make its product available for purchase, and second, Australia was one of those countries.
14. It was put to Mr Ton-That that at this point in time, had the Queensland Police Service expressed a desire to take up a licence to use the Clearview system, provided it was willing to sign up to the Clearview standard terms and conditions a licence would have been granted without a second thought.[41] Mr Ton-That rejected that proposition and said that there were further steps which would have been taken before that happened.
15. I am satisfied that that is the case and that those steps are as described in paragraph 12.a.ii of Mr Ton That's statement filed on 8 December 2022:

Should an authorised trial proceed to a "sale", then on "purchase" (which operates by "subscription") there would be the issuance of subscription terms and in that process, there be a legal determination that the Law Enforcement/Government agency had properly granted authority to enter the sale terms, noting that the terms and conditions contain representations and warranties etc. The determination of proper authority would typically consist of a formal letter from an appropriate officer of the Government.

16. In light of these findings, I am satisfied that in late 2019 and early 2020 Clearview was actively marketing its product to law enforcement agencies in Australia. Further, it was willing to grant a licence to use its product if:

(a) the relevant law enforcement agency was willing to accept Clearview's terms and conditions; and > > (b) the person they were dealing with could establish that they had proper authority to contract with Clearview.

17. I am satisfied that compliance with local privacy laws was at that point in time, a matter for the contracting party to determine and not an issue which Clearview required specific assurance about before granting a licence.[42]

Clearview's activities in Australia following the end of law-enforcement trials

1. After February 2020 Clearview's attitude to doing business in Australia was substantially revised. The article in the New York Times about the company prompted correspondence on 21 January 2020 from Elizabeth Hampton, the Deputy Commissioner at the OAIC. On 4 March 2020 the respondent notified Clearview that it had commenced an own motion investigation and that it wanted Clearview to cease collecting images of individuals located in Australia and cease disclosing or otherwise providing users with access to images of individuals located in Australia.
2. Clearview resisted giving any formal undertaking to the respondent.[43] It did however do a number of things voluntarily. First, it ceased to offer free trials for law enforcement agencies in Australia. Second, it blocked IP addresses from Australian locations which prevented persons identifiable as located in Australia from logging into the Clearview system.[44] From mid-2020 it introduced a more rigorous onboarding system which included a check whether it was lawful for a person to commence a free trial of the Clearview system in the jurisdiction in which they were located.
3. Since March 2020 no member of an Australian law enforcement agency has trialled the system or obtained a licence to use the system.
4. However, since that time the applicant's web crawler has continued to operate. The Image Library has grown 30 billion images.[45]
5. Mr Ton-That was asked by the Tribunal whether it was fair to say that since the Tribunal made its stay order in the proceedings (on 10 December 2021), Clearview continued to collect images of Australians and from Australian servers, and display them -Mr Ton-That replied:

Correct, yes. Yes, from Australian IP addresses, servers and we don't allow anyone from Australia to login to the app and we don't, you know, allow any Australian law enforcement to get access to the application.[46]

6. In late 2021 the applicant also stopped collecting 'opt-out' images from devices located in Australia.[47] The opt-out system had changed during the respondent's investigation from a system whereby persons wishing to opt out uploaded an image of themselves to the Clearview server, to a system where the person wishing to opt out emailed Clearview an image.[48] By the end of 2021 no opt out system at all was available.
7. Accordingly, I am satisfied that:

(a) up until at least February 2020 the applicant was actively marketing its product to law enforcement agencies in Australia; > > (b) by around March 2020 all marketing and trialling of the Clearview system in Australia ceased; > > (c) from mid-2020 Clearview's only interactions with Australia were: > > > (i) to collect images from Australian servers by sending out GET commands from its servers outside Australia and receiving the data communicated by Australian servers in response, and > > > > (ii) potentially receiving opt-out images from Australians; and > > > (d) by the end of 2021 Clearview ceased offering any opt out service to Australians but to this day it continues to collect images from servers in Australia.

1. As noted above, when considering whether the applicant has breached the Privacy Act it is necessary to consider three different points in time. The first is the period in which the Clearview system was being trialled for free by various Australian law enforcement agencies. The second period is the period after the termination of these trials when Clearview's principal Australian related activity consisted of continuing to acquire images off the public internet using its web crawler. In this period there were no measures in place to prevent Clearview from acquiring images of Australians or acquiring images from servers located in Australia. The third period to consider is the period after the 2022 Amendments became law and lowered the threshold for establishing an 'Australian link'.
2. The applicant contends that at no point in time did it have the necessary Australian link such that it was bound by the Privacy Act. If that contention is accepted, then the application must be resolved in favour of the applicant. If it is not, then consideration must be given to its contention that it is a small business operator and the other bases on which it contends it did not breach the APPs.

1. Section 5B of the Privacy Act describes the extra-territorial operation of the Act. Until 13 December 2022, the relevant provision read as follows:

(1A) This Act, a registered APP code and the registered CR code extend to an act done, or practice engaged in, outside Australia and the external Territories by an organisation, or small business operator, that has an Australian link.

(2) An organisation or small business operator has an Australian link if the organisation or operator is:

(b) a person whose continued presence in Australia is not subject to a limitation as to time imposed by law; or

(c) a partnership formed in Australia or an external Territory; or

(d) a trust created in Australia or an external Territory; or

(e) a body corporate incorporated in Australia or an external Territory; or

(f) an unincorporated association that has its central management and control in Australia or an external Territory.

(3) An organisation or small business operator also has an Australian link if all of the following apply:

(a) the organisation or operator is not described in subsection (2);

(b) the organisation or operator carries on business in Australia or an external Territory;

(c) the personal information was collected or held by the organisation or operator in Australia or an external Territory, either before or at the time of the act or practice.

Power to deal with complaints about overseas acts and practices

(4) Part V of this Act has extra-territorial operation so far as that Part relates to complaints and investigation concerning acts and practices to which this Act extends because of subsection (1) or (1A).

1. The applicant is a US company incorporated in Delaware whose operations are managed and controlled in the US. Apart from servers in Australia receiving GET requests and responding, none of the manipulating, processing and storage of images occurs in Australia. The applicant has no business facilities at all in Australia. Consequently, the applicant is not described in subsection 5B(2). It is therefore necessary to determine whether subsection 5B(3) applies.
2. To determine that it is necessary to consider whether paragraphs (b) and (c) of subsection 3 apply. Two particular questions arise:

(a) Whether the applicant carries or has carried on business in Australia; > > (b) Whether the applicant collects or has collected personal information in Australia.

3. Paragraph 5B(3)(c) of the Act was repealed on 13 December 2022. This meant that from that point on, to establish that the applicant has an Australian link it is only necessary for the respondent to satisfy the Tribunal that the applicant carries on business in Australia.
4. In those circumstances it makes sense to work backwards from when the statutory threshold is at its lowest and the applicant's activities in Australia are the most confined, through the other relevant points in time when the statutory test was higher, or the applicant's activities in Australia more significant. The three critical points in time are:

(a) Following the 13 December 2022 amendments; > > (b) Between March-2020 and 13 December 2022, when the applicant's activity in Australia principally consisted of acquiring images for its database using its web crawler; and > > (c) Prior to March-2020 when the applicant was marketing its product to Australian law enforcement agencies.

1. As stated above, since 13 December 2022 the only activity engaged in by the applicant associated with Australia is the collection of images of Australians and the collection of images and some meta-data from servers in Australia. This collection is achieved by a message being sent to servers by the applicant's web crawler, to which the servers respond by sending information in the form of data containing the image content of a public webpage and the web address. That data is ultimately processed outside Australia by the applicant and any images of faces and associated metadata are stored in a form which allows it to be searched when a Probe Image is uploaded by a law enforcement client.
2. The respondent contends that there are three circumstances in which the applicant's acquisition of images by use of its web crawler constitutes carrying on business in Australia. First, when Australians post images to global social media websites with servers outside Australia and those images are subsequently acquired by the applicant. Second, when images are acquired from websites with Australian domain names (essentially websites ending with '.au') regardless of where the server hosting the website is located. Third, when the applicant acquires images from servers located in Australia. In each case the respondent contends that the act of harvesting Australian information in that way is ancillary to the transactions that make up or support the applicant's business and therefore the applicant is carrying on business in Australia.[49]
3. This proposition is contentious. Although the requirement that a person needs to be 'carrying on business in Australia' before they will be subjected to Australian regulatory requirements is a reasonably common formulation, its application in the age of the internet has proved vexing. The formulation appears not only in the Privacy Act but also the Corporations Act 2001.[50] The Competition and Consumer Act 2010 uses the similar formulation 'carrying on business within Australia'.[51] The expression as used in all of these contexts has been the subject of relatively recent judicial attention.
4. In Campbell and Others v Gebo Investments (Labuan) Ltd and Others [2005] NSWSC 544 (Gebo) the NSW Supreme Court considered whether a foreign corporation which licensed a share market game to Australian consumers over the internet, which they paid for by credit card, was carrying on a business in Australia. The Court found that it was not.
5. More recently, in Valve Corporation v ACCC [2017] FCAFC 224 (Valve Corporation), the Full Federal Court found that a company which operated an online delivery platform by which video games were made available for purchase via the internet, including to consumers in Australia, was 'carrying on business within Australia', with the consequence that the Australian Consumer Law applied.
6. The Full Federal Court also recently considered the scope of the phrase as used in the Privacy Act in Facebook Inc v Australian Information Commissioner [2022] FCAFC 9 (Facebook Inc.). In that case the Full Court found that the Australian Information Commissioner had established a prima facie case that Facebook Inc. was carrying on business in Australia. The Full Court accepted that there was a prima facie case that in conducting its business of providing data processing services to Facebook Ireland (the entity which provides the service to Facebook users in Australia), Facebook Inc was carrying on business in Australia. The installation of cookies on computers in Australia was found to be capable of supporting such a conclusion (depending on the nature of the cookie).[52] In addition, the fact that Facebook Inc. provided companies based in Australia, like Telstra, with a Facebook login as a means of accessing the Australian companies' websites, was also capable of supporting a conclusion that Facebook Inc. was carrying on business in Australia even though the information provided to the Australian companies came from data centres in the US.
7. Importantly, Justice Perram, with whom Justice Yates agreed, concluded in Facebook Inc. that a company that:

(a) conducted a business in one place (the US), but > > (b) engages in repetitive acts in the performance of its business in another place where it otherwise does not conduct business and engages in no commercial activity (Australia)[53]

1. Chief Justice Allsop, who wrote separately but agreed with the outcome in Facebook Inc., appears not to have approached the question in precisely the same way as the other judges.[55] Despite this, his formulation of the rule for determination of whether a company is carrying on business in Australia will in most cases produce an identical result. The formulation preferred by the Chief Justice was:

The acts or activity in Australia need not be intrinsically commercial in themselves if they involve acts within the territory that amount to or are ancillary to, transactions that make up and support the business.[56]

2. Facebook Inc. was given special leave to appeal the Full Court's decision. However, following a change to the Federal Court Rules, the Commissioner applied to have the grant of special leave revoked. On 7 March 2023 the High Court revoked the grant of special leave on the basis that the matter no longer raised an issue of public importance. Consequently, the decision in Facebook Inc. is the most recent exegesis on the issue.
3. The movement away from the approach in Gebo that is apparent in both Valve Corporation and Facebook Inc. indicates that the Courts are now more conscious that the internet has changed the nature of business generally, and that there are businesses which are in the business of 'extracting value from information about people'.[57] The fact that less substantial connections are being found sufficient to ground a finding that a company is carrying on business in Australia is not the result of a change in the understanding of the concept of 'carrying on business in Australia', but is a product of the fact that the manner in which a business can be undertaken in a particular location has changed. As the Chief Justice makes clear in Facebook Inc. a more expansive analysis is required when businesses which monetise information are the subject of scrutiny. Crucially, it is important not to discard from analysis transactions which in and of themselves lack an intrinsic commercial quality when looked at in isolation. In information transactions, when looked at more broadly, they can take 'their place as a material part of the working of the business'.[58]
4. Consequently, while the focus of inquiry remains on whether there are acts within the relevant territory that amount to or are ancillary to transactions that make up or support the business, one cannot lose sight of the fact that the business is seeking to monetise information about people thus making the obtaining of information a critical transaction for the conduct of the business. Valve Corporation and Facebook Inc. have modernised analysis in light of how businesses are conducted in the age of the internet.
5. The test adopted in Facebook Inc. does not however divert attention from what occurs 'in Australia'. The use of the word 'in' in the phrase 'carrying on business in Australia' cannot be robbed of significance. Notwithstanding the significance of context, the text remains the surest guide to Parliament's intention.[59] The word 'in' anchors the phrase 'carrying on a business in Australia' in the physical location of the business transactions or at the very least the physical location of the participants in them. While as a matter of policy, one might question the wisdom of the Parliament choosing geography as the limiter on the regulatory scope of the Privacy Act in circumstances where information about Australians can be stored, moved and processed anywhere in the world, those are the words it chose. The Parliament has chosen to give physical location a role in defining the limits on the reach of the Privacy Act rather than relying on more flexible concepts like 'carrying on a business using information about Australians'. Consequently, it is what happens 'in' Australia that remains the key to whether there is an Australian link or not.
6. This has consequences for analysis of the three categories of transactions which the respondent contends amount to carrying on a business in Australia.

Does acquiring images posted by Australians amount to carrying on business in Australia?

1. I will look first at those occasions on which the applicant's web crawler sends its signal to a server outside Australia and in response receives an image which a person in Australia has at some point in time posted to a global social network such as Instagram. Assuming that Instagram hosts those images outside Australia, if that were the full extent of the relationship between the applicant and Australia I would not be satisfied that the applicant carried on business in Australia. The respondent submits that the explanatory memorandum to the 2012 amendments supports the more expansive interpretation for which they contend. It provides that:

The protection of the Privacy Act will extend to every person, not just Australian citizens or permanent residents, so long as the entity that is dealing with his or her personal information is an agency or an organisation with an Australian link... > > ...a collection is taken to have occurred "in Australia" where an individual is physically located in Australia or an external Territory, and information is collected from that individual via a website, and the website is hosted outside of Australia, and owned by a foreign company that is based outside of Australia and that is not incorporated in Australia. It is intended that, for the operation of paragraphs 5B(3)(b) and (c) of the Privacy Act, entities such as those described above who have an online presence (but no physical presence in Australia), and collect personal information from people who are physically in Australia, carry on a 'business in Australia or an external Territory".

2. The respondent contends that this describes the applicant. I do not agree with that characterisation. I can accept, for example, that if an Australian user posts to Instagram a photo while they are physically in Australia, such an act can be described as collection in Australia insofar as Instagram is concerned even if the Instagram server it is placed on is overseas. If this transaction is one of many performed in Australia it may ultimately contribute to a finding that Instagram carries on business in Australia. The location of the posting individual in Australia when the image is collected by Instagram is sufficient to render it a collection in Australia. However, if at a later time, Clearview sends a signal to the Instagram server outside Australia and receives a copy of the image in response, the fact that the person who previously uploaded the image was in Australia when the uploading happened, does not have the consequence, even if such a transaction occurs frequently, that the applicant is carrying on business in Australia. At the point in time when the applicant takes the image from the Instagram server it is impossible to know if there is any geographical connection with Australia. The person who uploaded the image originally may have left Australia. That person is no longer involved in the transaction between the Instagram server and the applicant's server, and all of the conduct of the applicant takes place outside Australia. To find that acquiring images that once originated in Australia but are in fact acquired from overseas servers amounts to carrying on business in Australia is to give the text a meaning which it cannot reasonably bear.

Does acquiring images from websites with the domain name .au amount to carrying on business in Australia?

1. For the same reasons, I would not regard the collection of information from websites with Australian domain names, but which are hosted on servers located outside Australia as sufficient to ground a conclusion that the applicant is carrying on business in Australia.

Does acquiring images from servers located in Australia amount to carrying on business in Australia?

1. The third basis on which the respondent contends that the applicant is carrying on business in Australia is in a different category. When Clearview obtains information stored on a server located in Australia there is a clear geographical connection to Australia. The question is, is this sufficient to support a finding that the applicant is carrying on business in Australia?
2. As noted above, Facebook Inc. and Valve Corporation establish that a person will be carrying on business in Australia if they engage in repetitive acts in Australia that amount to, or are ancillary to, transactions that make up and support the business which the person carries on. Those acts do not need to be intrinsically commercial in themselves.[60] No human agency is required.[61] However, data collection in and of itself is not sufficient to amount to carrying on a business in Australia (notwithstanding what the relevant explanatory memorandum says) - more is required.[62] Mere data collections from Australian servers which do not form part of a business would not result in the acquirer 'carrying on business in Australia'.
3. In the present case however, I am satisfied that the applicant is carrying on business in Australia for the purposes of the Privacy Act. Its business is based on three key elements. First, the collection of a large number of images and their associated metadata which constitute the raw materials for its Image Library and associated metadata database. Second, the development of software with the capacity to enable searching of those images in order to produce usable results consisting of images which match a Probe Image and the metadata associated with those images. Third, the business needs to acquire law enforcement clients which will pay licence fees in order to undertake searches of the images on the database by reference to the Probe Images they upload.
4. The harvesting of images is an essential part of the business. Without the harvesting there is no Image Library from which the business elements of the system can be built. While almost everything in relation to the business happens in the US, the applicant acquires its images from all over the world including from servers in Australia. The image acquisition transactions are the foundation of the business. They are properly characterised as transactions that make up or support the business.
5. Finding an analogue in a more conventional business is not easy, and not necessarily enlightening,[63] but it is true to say that the image acquisition transactions provide the raw materials on which the entire business depends. It is important for the business that it has grown its Image Library from 3 billion images as at January 2020 to 30 billion images now.[64] Without a large collection of images, the business cannot offer a useful end product to law enforcement. The more images it has, the more likely useful matches will be unearthed and the more useful the product becomes to its target users.
6. Given how foundational image acquisition is to the business of the applicant, I am satisfied that the computer interactions between the web crawler and servers located in Australia are transactions which make up and support the business. I accept that this is not the kind of transaction one would think of immediately when considering whether a company is carrying on business in Australia, but once the key elements of the business are teased out, it becomes clear that the repetitive extraction of images from websites from around the world, including Australia, is a key component.
7. As discussed at paragraph ‎94, if the transfer of the information involved a human in Australia transferring the data to a business overseas, there would be no doubt that the receiving business would in many circumstances be carrying on business in Australia. So much is clear from the relevant passages of the Explanatory Memorandum to the Privacy Amendment (Enhancing Privacy Protectio[65] Bill 2012.65 The explanatory memorandum supports the conclusion that the mere presence of the provider of the information in Australia is sufficient to satisfy the collection in Australia requirements and, depending on the results of the business analysis, the carrying on of business in Australia requirement. The fact that Clearview secures information surreptitiously without the need for human agency does not to my mind put it in any different position.
8. I am therefore satisfied that so long as the applicant continues to acquire information, from servers in Australia using its web crawler, it is engaging in transactions that make up and support the business in Australia and thus it is carrying on business in Australia. From 13 December 2022 that is sufficient for a finding that the applicant has an Australian Link.
9. At hearing, the applicant's sought to resist this conclusion by emphasising that image acquisition in Australia is not essential to the business and that the product which Clearview offers would still be a viable product even if it did not acquire images from servers in Australia. So much may be true. But the test is not whether the transaction is 'essential'. It is sufficient if there are transactions in Australia that make up and support the business. The image acquisition transactions that happen worldwide, including in Australia provide the essential foundation of the business which is the Image Library. So long as the images the applicant acquires include images acquired from within Australia, the applicant is carrying on business in Australia.
10. That being the case, I am satisfied that at present the applicant has an 'Australian link'.

1. Once an Australian link has been established, the Privacy Act extends to an act done or practice engaged in, outside Australia and the external Territories by an organisation or small business operator. However, the APPs do not apply to small business operators.
2. I am satisfied that Clearview is not a small business operator. I reach that conclusion on two bases. First, I am not satisfied that its turnover falls below the $3 million threshold required for classification as a small business operator.[66] Second, even if it did, I am satisfied that it is excluded from being a small business operator because it discloses personal information about another individual to someone else for a benefit.[67]
3. I will deal with the second proposition first. An 'organisation' is defined as a body corporate that is not a small business operator.[68] A body corporate is not a small business operator if it discloses personal information about another individual to anyone else for a benefit, service or advantage.[69] I am satisfied that Clearview does disclose personal information about an individual for benefit. It does so when it discloses images from its Image Library along with associated meta-data concerning a person in a Probe Image to a law enforcement agency who has paid a licence fee.
4. In reaching this conclusion, the first issue to consider is whether the applicant, by disclosing images from its Image Library and the associated meta-data is disclosing 'personal information'. 'Personal information' is defined to include information about an individual who is reasonably identifiable whether the information is true or not.[70] The respondent contends that an image of a person's face reveals information about an individual who is reasonably identifiable and so any image in the Image Library is in and of itself 'personal information'.[71] This proposition finds some support in a decision of the Victorian Civil and Administrative Tribunal under the Victorian Information Privacy Act 2000. The Victorian and Commonwealth provisions are not identical but are similar enough to be of some assistance. In the matter of Smith v Victoria Police [2005] VCAT 654 it was assumed by all parties that a person's identity would be 'apparent' if the information was a photograph of the person.[72] However questions arise with this formulation - apparent to whom and in what circumstances. Similar questions arise under the Commonwealth Privacy Act. In some circumstances a photo will render a person reasonably identifiable if it is shown to someone who knows them but not if it is shown to someone who doesn't. If someone is shown a photo of a random person without context, unless they already knew their identity it could not be said that by the photograph alone the person in the photo is reasonably identifiable. Consequently, I have my doubts about the proposition that a photo without more qualifies as 'personal information'.
5. However, the value of the Clearview system in the process of identification is that it does not just provide photos but also provides context in the form of the URL from which the photo was taken. In many cases the website from which the image was drawn will identify the person, providing the person's name and other details. In addition, the Clearview system is designed to show photos and associated meta-data to a person who already has some information about a person - ie the law enforcement agent who uploaded the Probe Image. When the system is searched, it often produces multiple results and multiple URLs. It is also expected that the person who receives the information will be in a position to make further inquiries and by this process will in many cases be able to readily identify the person.[73] Given these circumstances I am satisfied that Clearview does hold information about at least a subset of individuals on their database who can be appropriately classified as 'reasonably identifiable' by both Clearview and its customers. The images and associated meta-data about those individuals qualify as personal information. The information is collected and disclosed because it makes the person in a Probe Image identifiable. If it did not, the service would have no value.
6. Being satisfied that the applicant by disclosing images from its Image Library along with associated data from its meta-data database discloses personal information, I am also satisfied that the information disclosed is about another individual (the subject of the Probe Image), it is disclosed to someone else (the law enforcement agent), for a benefit (the licence fee paid by the law enforcement agency). Therefore, the applicant is excluded from being a small business operator by paragraph 6D(4)(c).
7. I am satisfied that none of the carve outs in subsections (5) to (8) apply.
8. Consequently, the applicant is an organisation, and is an APP entity.[74]
9. Even if I were not satisfied that paragraph 6D(4)(c) applied, I am not otherwise satisfied that the applicant is a small business operator. As noted above, Mr Ton-That gave very short and unconvincing evidence about the earnings of the applicant.
10. The respondent contends that I should approach his evidence with caution. The respondent's submissions in relation to this issue are as follows:

The Applicant (now) claims it falls within one of the exclusions from the definition of 'organisation' insofar as it satisfies the definition of a 'small business operator' in s 6D of the Act. There are two difficulties with that contention: > > First, the applicant has not adduced any evidence to substantiate Mr Ton-That's assertion (made for the first time in his oral evidence in chief) that the Applicant does not and has never had an annual turnover in excess of US$2,000,000; > > ... > > The Commissioner contends that where an entity seeking to be totally excused from compliance with the serious and important obligations that would otherwise attach to it as an 'APP entity' under the Act has been placed on notice of the need to substantiate bare assertions as to its revenue figures, asked to produce taxation returns or other financial documents and has consistently refused to do so, then a bare assertion of the revenue of the organisation (particularly one given in such broad and sweeping terms, and without any reference to the position of related bodies corporate) cannot be sufficient to satisfy the Tribunal it meets the requirements for the exception. > > That is particularly so given the ease with which the Applicant could produce information in order to substantiate the assertion, and the total inability of the commissioner to challenge it, in the case of a private company.

11. I do not accept that the assertion that the applicant is a small business operator is new. That is a claim which the applicant has made consistently since the commencement of the respondent's investigation. However, I do accept that I should approach the evidence given by Mr Ton-That on this issue with considerable caution. There was no indication in the evidence given that Mr Ton-That had given careful consideration to the question of whether the company's revenue fell below the statutory threshold. In particular, there was no evidence that Mr Ton-That had undertaken the necessary steps to confirm that the threshold in Australian dollars for a 'financial year' had been met. His evidence, when assessed in a context where precise methods of proof were available to the applicant at little cost, I am not reasonably satisfied that the applicant's annual turnover was such as to render it a small business operator.
12. Accordingly, by two alternative routes I am satisfied that the applicant is not a small business operator and therefore is an 'organisation' as defined in the Privacy Act. That has the consequence that the applicant is an APP entity and must not breach the APPs.[75] Further, because in the applicant's case the Privacy Act extends to an act done, or practice engaged in, outside Australia and the external Territories[76] any practice engaged in by the applicant, regardless of location, can be considered in determining whether the APPs have been breached.

1. Section 13 of the Privacy Act provides that an act or practice of an APP entity is an interference with the privacy of an individual if the act or practice breaches an Australian Privacy Principle in relation to personal information about the individual.[77]
2. I am satisfied, as the respondent contends, that the applicant has breached APP 1.2 and APP 3.3. I am not persuaded it has breached any other APP.

An APP entity must not collect sensitive information about an individual unless:

(a) The individual consents to the collection of the information and:

1. ...; or
2. If the entity is an organisation - the information is reasonably necessary for one or more of the entity's functions or activities; or

(b) Subclause 3.4 applies in relation to the information.

1. There is no dispute that the applicant collects the images and collects them for inclusion in a record, namely the Image Library.
2. Consequently, the substantive question to be answered is whether the information collected by the applicant is sensitive information about an individual. The term 'sensitive information' is defined in section 6 of the Privacy Act. That definition includes 'biometric information that is to be used for the purpose of automated biometric verification or biometric identification' and 'biometric templates'.
3. The applicant does not accept that the images which its web crawler obtains from the internet contains sensitive information. The respondent contends that the information collected falls within the categories of sensitive information identified above. The respondent contends as follows:

...it is clear from the Explanatory Memorandum that accompanied the addition of the relevant concepts to the definition of 'sensitive information' in 2012 that they were introduced to give effect to a recommendation of the Australian Law Reform Commission in its 2008 review into Privacy law and Practice. > > That recommendation arose following the ALRC's discussion of the need to include biometric information in the definition of 'sensitive information' as a result of concerns that "biometric technologies, such as facial recognition technologies, may be used to identify individuals without their knowledge or consent". In that context, it is clear that the ALRC used biometric information to mean information capable of being used for the purposes of biometric identification. > > Further, there can be no question that in the ALRC's discussion of the nature of biometric technology, biometric information was expressly intended to encompass facial features recorded in a photograph. In discussing the nature of biometric technology, the ALRC quoted the Biometrics Institute as saying: > > Biometric technology involves the storage and use of unique personal information to verify the identity of an individual. These unique identifiers are based on person (sic) attributes such as fingerprints, DNA, iris, facial features, hand geometry, voice etc. Even a photograph could be described as one of the lower levels of biometric recognition." > > In those circumstances the Commissioner contends that it is beyond question that the images collected by the Applicant contain or comprise biometric information.

4. I accept that submission.
5. The content of the concept of biometric information is a developing one. It is broadly defined as the application of mathematical-statistical theory to biology.[78] Consequently, whether a particular biological characteristic amounts to biometric information depends on both human understanding of the biological characteristic in question and whether the technology is available to analyse that characteristic. The earliest appearance of the term 'biometric' in the sense in which it is now used - to describe using biological characteristics to establish identity - appears to have been as recent as the 1980s.[79] Since the 1980s, the biological markers of identity have expanded as technology has developed. The fingerprint was perhaps the original piece of biometric information which linked biology and identity. But in the last 40 years the range of biological markers which can be used to establish identity have expanded to include DNA, the iris and now more recently the face. For most of human history I do not think it would be appropriate to describe a person's face as a piece of biometric information. However, as a consequence of the development of powerful computers it has become one. Anyone who opens their smart phone simply by looking at it would be conscious that it is now possible to verify a person's identity simply by showing their face to a camera.
6. This does not mean that in every context an image of a person's face is biometric information, but in some contexts it certainly is. In the context of the applicant's business which involves the automated recognition of individuals by analysis of their face, any image of a face it seeks to acquire is biometric information.
7. That biometric information becomes 'sensitive information' when that information is to be used for biometric identification. The evidence establishes that the applicant's web crawler opens websites and seeks out images which include a face. The applicant specifically accepts that:

When Clearview's crawlers collect an image from the internet, that image is saved on an image database (Image Library)... > > Once an image is deposited into the Image Library, the Clearview System draws a "vector", derived from that part of the image that contains facial features. This vector is not a "map" in the sense of being a blueprint, or other graphic representation capable of being recognized by a human as depicting a face, or even the relationship between facial features. The vector is more accurately described as a "digital array" - being a collection of data values decipherable...only by a computer. Specifically, they are numerical values representing coordinate sets in a 512-axes coordinate plane. > > ...all vectors created by the Clearview System are "digital arrays" incapable of being used by humans in the form in which they are created. ... > > The vector associated with the facial features in an image is then deposited into a separate database of vectors (Vector Database)...

8. I am satisfied that images of faces are biometric information. I am satisfied that that biometric information is used by Clearview and its customers for biometric identification of individuals. That is the purpose of the Clearview product.
9. I am also satisfied that Clearview collects biometric templates which also qualify as 'sensitive information'. The Vector Database is a collection of biometric templates. Clearview creates and collects that information.
10. There is no suggestion that the individuals whose images are collected and have that image converted into a vector consent to Clearview's collection.
11. I am satisfied that a breach of APP 3.3 has been established.

1. APP 3.5 provides that an APP entity must collect personal information only by lawful and fair means. I am not satisfied that this APP has been breached. The information is collected from the public internet and it is information which any person who opens the relevant website would be free to take without informing the persons who are included in the image that that is what they are doing. There is nothing unlawful in doing so. Whether it is fair is hard to judge. Before the applicant can collect an image a person has to have decided to place the image on the internet without any access restrictions. In circumstances where a person has done that, I am not satisfied that it can be said that it is unfair to then collect that image using a web crawler.
2. The result might be different if the collection was in breach of limitations that the person posting the image understood would be applied. In this regard I note that the respondent relied upon the terms of service upon which LinkedIn and Twitter offered its services, which include restrictions on using bots to access those services. This was said to provide a basis for establishing that collection was contrary to a user's expectations of privacy. However, I am not in a position to judge whether the interactions between Clearview's web-crawler and these sites amount to breaches of conditions of access. The fact that 'cease and desist' letters have been sent by those companies and others to Clearview but do not appear to have resulted in any legal action to prevent Clearview's conduct, suggests that there is nothing which Clearview is doing which breaches the conditions of service of those companies.
3. Given the state of the evidence at this point I am not satisfied that APP 3.5 has been breached.

At or before the time or, if that is not practicable, as soon as practicable after, an APP entity collects personal information about an individual, the entity must take such steps (if any) as are reasonable in the circumstances: > > to notify the individual of such matters referred to in subclause 5.2 as are reasonable in the circumstances; or > > to otherwise ensure that the individual is aware of any such matters.

2. The matters in 5.2 include such things as the fact that the entity has collected personal information and the purposes for which the APP entity collects the personal information.
3. APP 5.1 is difficult to apply in circumstances where public information is collected and aggregated without the knowledge of the vast numbers of people whose faces ultimately end up in the applicant's database. This APP appears to have been developed to cover collections where information about specific individuals is obtained by an organisation during specific interactions when there is an opportunity to explain to the person why the information is being collected.
4. However, when a person is collecting vast amounts of information and has no personal interaction with anyone who is the subject of the collection, it is difficult to know what steps are 'reasonable in the circumstances' for the collector to take. If notification obligations are imposed, it is reasonable to infer that Clearview and any business like it will be unable to comply because of the number of people on their database and the difficulty in identifying who should be informed. If I were to determine that Clearview has notification obligations in relation to everyone whose image is held in its Image Library, I am satisfied that Clearview would be unable to comply. On the other hand, determining that no notification steps are reasonable would afford Clearview considerable freedom to operate.[80] There does not appear to be any middle ground. However, there are some elements of the text which suggest that as far as this APP is concerned, if practical compliance is impossible, breach of these requirements is excusable.
5. The drafting of APP 5 makes clear that one outcome it allows for is collection in circumstances where it is not going to be reasonable in the circumstances to notify individuals that the collection has taken place. The use of the phrase 'if any' in relation to the steps which are reasonable in the circumstances, has that implication.
6. That being the case, I am not satisfied that the applicant has breached APP 5.1. The real vice with the business model Clearview operates is confronted directly by APP 3.3. To give an expansive reading to APP 5.1 with the effect that it becomes administratively impossible for the applicant to operate, does not sit easily with the accommodating terms in which the APP is expressed. In those circumstances I am not satisfied that APP 5.1 has been breached.

An APP entity must take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity uses or discloses is, having regard to the purpose of the use or disclosure, accurate, up-to-date, complete and relevant.

1. As discussed at ‎109 above, the information which Clearview discloses about a person will in many cases be personal information - ie information about an individual who is reasonably identifiable.
2. The information disclosed by the applicant is essentially this - that a person who its system identifies as having a matching face to the Probe Image has, at certain points in time, appeared in images published by various sites on the internet. That information is accurate, relevant and as up-to-date as Clearview can provide. But it is not accurate and up-to-date in any deeper sense. For example, it is clear that the image which Clearview provided in 2018 to New York police of a suspect was not up to date in the sense that the subject of the photo had shaved off his beard.[81]
3. How accurate and up to date the information Clearview provides depends on how up to date and accurate the website it is drawn from is. If the information on the website from which the image is drawn from is inaccurate, the information disclosed by Clearview will be inaccurate. If the image on the website is not up to date, information Clearview provides will not be up to date.
4. Assessing what is reasonable in terms of ensuring accuracy in such a novel context is a difficult exercise. Requiring Clearview to do more to ensure accuracy prior to release of results to law enforcement agencies would require a radical change to the business model which may render it unworkable. Requiring them to do nothing means that law enforcement agencies are being provided with information which may be full of inaccuracies.
5. Having regard to the circumstances in which disclosure takes place - namely, in the context of an investigation, where law enforcement agencies are informed by the Clearview system that certain images of a person appear at certain web addresses - I am not satisfied that further steps to ensure that information associated with those images is up to date, accurate relevant and complete are reasonable.
6. I am however satisfied that Clearview has taken significant steps to ensure that when it advises law enforcement agencies that the Probe Image matches faces which are found at identified web addresses, that that information is accurate. The rapid spread of the use of the service strongly suggests that the facial recognition system used by Clearview is producing accurate results and useful leads for investigation. Given the role that the information plays in the investigation process - ie it is for the investigating officer to decide whether any information provided by the Clearview system is sufficiently reliable to justify further investigation based on it, the steps Clearview currently takes to ensure accuracy appear reasonable. I am satisfied the facial matching is highly accurate[82] and that law enforcement agencies understand that they need to independently assess the significance of the information provided.[83] In those circumstances no other steps are required to ensure that the information disclosed is accurate, up-to-date, complete and relevant. APP 10.2 has not been breached.

An APP entity must take such steps as are reasonable in the circumstances to implement practices, procedures and systems relating to the entity's functions or activities that: > > Will ensure that the entity complies with the Australian Privacy Principles and a registered APP code (if any) that binds the entity; and > > Will enable the entity to deal with inquiries or complaints from individuals about the entity's compliance with the Australian Privacy Principles or such a code.

2. I am satisfied that the applicant is in breach of this requirement. It follows from my finding of the breach of APP 3.3. The applicant has been the subject of investigation since early 2020 and been the subject of adverse findings by the Privacy Commissioner since October 2021. Despite this it continues to collect images from servers located in Australia. It has failed to ensure that it complies with APP 3.3.

1. The above findings relate to the applicant's conduct since 13 December 2022. Prior to that date more was required to establish an Australian link. In addition to a finding that the applicant was carrying on business in Australia it was also necessary to establish that the applicant collected or held personal information in Australia.
2. Before turning to that question though it is worth highlighting a further effect of the 2022 Amendments. In Facebook Inc. Justice Perram analysed paragraph 5B(3)(c) of the Privacy Act and determined that it had the effect that only information collected or held in Australia was the subject of the extra-territorial operation of the Privacy Act.[84] Consequently, one effect of the repeal of the paragraph is to substantially increase the regulatory scope of the Privacy Act once an Australian link is established. The repeal of the paragraph seems to have the consequence that so long as the applicant has an Australian link, all of the personal information which it collects, regardless of its geographical source, is regulated by the Privacy Act.
3. The applicant can of course sever the link with Australia by ceasing to collect information from Australian servers, but so long as it carries on business in Australia by collecting information from servers located in Australia, it is bound to treat all of the sensitive information which it collects, regardless of geographical origin, in a manner consistent with the requirements of the Privacy Act.
4. I have not received detailed submissions on this issue and my view may change in the context of submissions in relation to the declaration which I should make, but what I have set out above appears to follow from the fact that once an organisation is found to have an Australian link, acts done or practices engaged in outside Australia become regulated and no link with collection or holding in Australia is required.

1. For the same reasons as those expressed above in relation to the post 13 December 2022 period, I am satisfied that the applicant was carrying on a business in Australia before the 2022 Amendments and after it ceased offering trial use of its product to law enforcement agencies.
2. However in that period, before an Australian link could be found it was necessary for personal information to be collected or held in Australia. Subsection 5B(3) provided as follows:

(3) An organisation or small business operator also has an Australian link if all of the following apply: > > (a) ...; > > (b) the organisation or operator carries on business in Australia or an external Territory; > > (c) the personal information was collected or held by the organisation or operator in Australia or an external Territory, either before or at the time of the act or practice.

3. Justice Perram pointed out in Facebook Inc. that there are issues with how paragraph (c) is drafted. There is a sudden reference to 'the personal information' in paragraph (c) and to 'the act or practice'[85] that is difficult to make sense of.
4. Having reviewed the history of the provisions, it would appear that while originally the extra-territorial provisions made sense, a drafting oversight in 2012 when the provisions were amended resulted in the incoherence that Justice Perram identified.
5. When originally enacted, the extra-territorial provisions of the Privacy Act were restricted by reference to both an organisation's link with Australia and whether the acts or practices the organisation engaged in related to personal information about an Australian citizen or permanent resident.[86] Paragraph 5B(3)(c) added a temporal requirement before foreign organisations carrying on business in Australia were caught - namely, that the personal information of the Australian citizen or permanent resident, was collected or held within Australia either prior to or at the time the offending act or practice was engaged in in relation to that information. As originally drafted it was obvious that the reference in paragraph 3(c) was a reference to the personal information about an Australian citizen or permanent resident expressly referred to in subsection (1).
6. In 2012 however the extra-territorial operation of the Privacy Act was overhauled. Subsection (1) was repealed and replaced with a subsection that made no reference to the personal information of an Australian citizen or permanent resident. Any act or practice engaged in outside Australia was caught if the organisation had an Australian link. Regrettably no corresponding amendment was made to subsection (3) to reflect the fact that the reference to specific personal information had been removed from subsection (1). The reference to 'the personal information' in subsection (3) was retained even though the specific personal information which it was referring to was no longer referenced in subsection (1).
7. As a consequence, the text of the provision does not clearly convey Parliament's intention regarding the scope of the extra-territorial provisions. However, when resort is had to the 2012 Bill's explanatory memorandum it is passably clear that Parliament's intention in making the amendments was to expand the range of people protected by the Privacy Act beyond citizens and permanent residents. The explanatory memorandum relevantly provides:

The protection of the Privacy Act will extend to every person, not just Australian citizens or permanent residents, so long as the entity that is dealing with his or her personal information is an agency or an organisation with an Australian link.[87]

8. To implement Parliament's intention it is necessary to read out 'the' from the phrase 'the personal information' in paragraph (3)(c). While normally it would not appropriate to depart from the general rule in statutory interpretation that all of the words in the text should have meaning attributed to them,[88] in the present case I regard it as appropriate to do so. Disregarding the word 'the' in this case meets the requirements for doing so as clarified by the High Court in Taylor v The owners Stata Plan No 11564.[89] The history of the provision reveals that the maintenance of the definite article at the start of the phrase was an unintentional drafting relic which should have been removed when the amendments in the 2012 Bill were drafted.
9. The result of reading the provisions without the definite article is that the temporal limitation which it imposes becomes clear. Until there is a collection or holding of personal information in Australia the applicant is not bound by the extra-territorial provisions. Until that event occurs it has no Australian link. In light of Justice Perram's statements in Facebook Inc. there is also be a requirement for the information collected in Australia to be the information which is the foundation of the finding of a breach of the Privacy Act.[90]
10. Consequently, I must address three questions. First, whether there is a collection in Australia. Second, when that occurred - in order to determine the date at which the applicant became subject to the Privacy Act. Third, whether the information collected which creates the Australian link, is the same collection of information which constitutes a breach of the Australian Privacy Principles.

1. I am satisfied that information which is sent by Australian servers in response to communications from the applicant's web-crawler is 'collected in Australia'.
2. Under section 6, an entity:

...collects personal information only if the entity collects the personal information for inclusion in a record or generally available publication.

1. A 'record' includes an electronic device. The applicant has made clear that it takes the information that it receives from servers around the world, including Australia, and creates a number of different records. Images of faces are placed in its Image Library and the associated meta-data is placed in its meta-data database. Those databases are rendered susceptible to a facial recognition search by the creation of image vectors and the inclusion of that vector in the Vector Library. For the reasons explained at paragraph ‎109 I am satisfied that the information obtained by the applicant from Australia constitutes 'personal information'. For the reasons set out at paragraph ‎102 I am satisfied that the fact that information is sent from Australia to the applicant is sufficient to ground a finding that there is 'collection in Australia'. It is clear that the applicant collects personal information for inclusion in a record.
2. The applicant contends that the collection happens outside of Australia. I do not accept that submission. Information which is sent from a site geographically located in Australia to another country for processing overseas is 'collected in' Australia. While this is not perhaps the most natural meaning of the phrase, it is a reading which is open. In a context where the Parliament is concerned to protect the privacy of people in Australia,[91] such an interpretation is more consistent with Parliamentary intention than a more constrained assessment of where collection takes place. This approach is particularly justified in light of the terms of the explanatory memorandum discussed at paragraph ‎102. It is worth noting that the applicant did not originally contest su[92] a finding.92
3. Consequently, the Privacy Act had extra-territorial operation in relation to the applicant's overseas practices once collection in Australia of personal information had commenced.

When did collection in Australia first commence?

1. The evidence on when collection began in Australia is not precise. To know precisely when it commenced I would need to know the date on which information was first sent from an Australian server in response to a GET request from Clearview's web-crawler. The evidence does not descend to that level.
2. I am however satisfied that collection in Australia was happening by no later than February 2020. By that point in time the Queensland Police Service had undertaken trials of the product. Members of the service had used the Clearview App to test its efficacy. One member of the service who used the app took a picture of another member and received one accurate match which was from a sports event in Australia and came from a news website.[93] On another occasion a person attached to the Child and Sexual Crime Group searched the face of an Australian known to him with that person's consent. The search produced approximately 10 accurate matches. On another occasion a search was conducted in relation to the face of a person of interest. Again, the search produced about ten accurate matches. The person of interest was located in Australia.
3. When this information is combined with the evidence of Mr Ton-That about the indiscriminate operation of the web-crawler and his concession that the web crawler 'continues' to search Australian servers, I am reasonably satisfied that by no later than February 2020 the applicant's web crawler had sought out and received images from an Australian server.

Whether the information collected which creates the Australian link, is the same collection of information which constitutes a breach of the Australian Privacy Principles

1. As noted above, in Facebook Inc. Justice Perram reaches a conclusion that section 5B(3)(c) requires that the personal information regulated by the APPs is the same personal information which provides the Australian link.
2. In this period, it is the collection from Australian servers of 'sensitive information' - ie data which includes images of faces that is to be used for the purposes of biometric identification - without consent, that constitutes the practice in breach of the APPs. This is the same collection of information which provides the Australian link.
3. The Privacy Act therefore does have extra-territorial operation in relation to collections in Australia in this period.

Does a specific breach need to be established?

1. The finding that the Privacy Act had extra-territorial operation in relation to the applicant in the period between the applicant ceasing to solicit customers in early 2020 and the passing of the 2022 Amendments may not be sufficient to establish that the applicant breached an APP in this period. I am satisfied that in this period the applicant did collect images from servers located in Australia and did so in circumstances where it amounts to the collection of sensitive information without consent. However, I cannot identify any particular image which has been collected in those circumstances. The evidence does not descend to that level. This raises the question whether it is necessary to identify a particular image or images that were collected in Australia in order for a determination under section 52(1A) to issue in relation to this period.
2. The respondent contends that to the extent that the applicant presses such a contention it is plainly wrong. The respondent contends that the investigation which resulted in the determination under s 52(1A) was concerned not with breaches in relation to any particular individuals, but an act or practice in relation to the collection of personal information about individuals in Australia generally.
3. Further, it is contended, if there is such a requirement, it is one to be assessed having regard to the fact that the question of whether particular images in the applicant's database were collected in Australia is one wholly within the Applicant's knowledge, and the fact that the applicant has been asked to confirm whether images from specific websites located on servers in Australia are present on the database and has not done so.[94] The respondent also says that, in any event, the inference that the applicant collects information from individuals located in Australia is inescapable given the size of the applicant's database, the indiscriminate nature of the applicant's copying, and the fact that the service was offered to and used by Australian law enforcement, who undertook large numbers of searches and successfully identified matching images of police members and persons of interest located in Australia. I am prepared to draw that inference, particularly in light of Mr Ton-That's acceptance of the proposition that since the Tribunal's stay order, the applicant has continued to collect images from Australian servers.[95]
4. In those circumstances I can be satisfied that the applicant has engaged in a practice which is contrary to the requirements of APP3.3 in the relevant period.
5. That however is not sufficient to resolve the question of whether a specific identifiable breach of an Australian Privacy Principle is a necessary precursor to a determination that a person has 'engaged in conduct constituting an interference with the privacy of one or more individuals and must not repeat or continue such conduct'.[96]
6. The reference to a 'practice' suggests that systemic conduct can be the subject of investigation, but the prohibited interference is an 'interference with the privacy of an individual' which occurs 'if the practice breaches an Australian privacy principle in relation to personal information about the individual'.[97] This formulation suggests that a specific individual whose privacy has been breached needs to be identified.
7. At present however the parties have agreed that the form of declaration which I can make will be the subject of separate argument following the publication of my findings on whether the Privacy Act applies to the applicant and whether any APPs have been breached.

1. For the same reasons as expressed above in relation to other periods, I am satisfied that the applicant was carrying on business in Australia prior to mid-2020 and engaged in collections in Australia. Indeed, given that I am satisfied that the applicant also engaged in marketing activities with a view to licensing the Clearview system, I am even more confident in my conclusion that the applicant was carrying on business in Australia. However, marketing which occurred in Australia is not essential to my finding that the applicant was carrying on business in Australia at this time.
2. In this period, it is possible to make more specific findings about the nature of the collections which occurred.
3. On each occasion when a person from a law enforcement agency uploaded a Probe Image to test the efficacy of the system, the applicant was involved in a collection in Australia. The explanatory memorandum to the 2012 amendments makes it clear that the uploading of information to overseas servers by people in Australia is intended to be caught by the phrase 'collection in Australia'.
4. For the reasons already explained, the fact that applicant had a web crawler extracting information from servers based in Australia at that time provides a sufficient basis to conclude that the applicant was at that point in time carrying on business in Australia.
5. The uploading of faces which occurred as a result of the police trials does involve collection of sensitive information about an individual. The image of the face itself is biometric information and it is collected by Clearview for the purposes of biometric identification. The collection of such images without consent is contrary to APP 3.3 at least in the case of the persons of interest whose faces were uploaded during the trial periods.
6. The applicant breached APP 3.3 and APP 1.2 in this period.

1. There is one further category of images which Clearview collected - opt-out images and vectors. As the timings do not fit neatly into the periods identified for consideration of the other images it is appropriate to deal with them separately. Different issues arise in relation to them.
2. It is important to recall that opt-out images are supplied by individuals to Clearview for the purpose of Clearview preventing its system from providing law enforcement with images of the individual's face and associated meta-data. How often persons in Australia attempted to opt-out is unclear, but my strong impression is that it was not frequent or regular.
3. Initially collections were effected by the individual uploading the opt-out image directly to the Clearview system from the individual's computer. This practice changed at some point in 2020 or 2021 so that the image was emailed to Clearview and the uploading to Clearview's system occurred outside of Australia.
4. From these facts I can readily infer that the provision of the image to Clearview was done with the consent of the individual seeking to opt out. Accordingly, the collection of the opt out image does not breach APP 3.3.
5. Further, notwithstanding that that image is then converted to an image vector and retained by Clearview I am not satisfied that this amounts to a breach of APP 3.3. I am satisfied that when a person opts out of the Clearview system there is no specific consent based on a fully informed understanding of how the system works. I am confident that those who opted out would not have appreciated that at a technical level Clearview built and retained an opt out vector. However, I am satisfied that people who uploaded images of themselves consented to the necessary technical steps being taken to ensure that images of them were not generated by the Clearview system. I do not think that anyone would be surprised to discover that it was necessary to keep some kind of record to ensure that images were not returned by the system when law enforcement agencies undertook searches of their face. I am satisfied that the individual at the point of opting out is consenting to whatever collection is necessary to allow them to opt out.
6. I am not satisfied that there has been any breach of the APPs by Clearview creating and retaining opt-out vectors.

1. In summary, I am satisfied as follows.
2. In the period from 13 December 2022, and ongoing, I am satisfied that Clearview carries on business in Australia. Consequently, it has an Australian link and its activities and practices outside Australia are subject to the Privacy Act.
3. I am also satisfied that in this period Clearview collected sensitive information about individuals without consent. This practice breaches APP 3.3.
4. I am also satisfied that in the period between Clearview ceasing to conduct free trials for law enforcement and 13 December 2022, Clearview satisfied the requirements for an Australian link. It carried on business in Australia by reason of its collection of data from Australian servers and it collected information in Australia by the same process. This practice was in breach of APP 3.3.
5. I am also satisfied that while the applicant was conducting free trials of its product in Australia, and no later than the end of February 2020, Clearview carried on business in Australia. It also collected information in Australia. It therefore had an Australian link. The applicant engaged in practices in this period that breached APP 3.3 including the collection of images of persons of interest.
6. As a consequence of these breaches of APP 3.3 the applicant also breached APP 1.2.
7. So long as the applicant continues to obtain data from servers located in Australia it carries on business in Australia and has an Australian link. If it wishes to move beyond the reach of the Privacy Act it must cease the practice of collecting images from servers located in Australia.
8. Whether declarations in light of these findings should be made under section 52 of the Privacy Act is a matter which will be considered at a separate hearing. Until that question is resolved I will not issue a formal review decision in relation to the determination of the Privacy Commissioner.

I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan

...................................[sgd].....................................

[1] This represents a broad summary of how the system works - more detailed findings are made in the Facts section of this decision.

[4] In the interests of clarity I have not used defined terms used by the Privacy Commissioner in the summary of the decision set out here. I adopt them later in these reasons.

[5] Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022.

[9] David Gourley et al, HTTP: The Definitive Guide, (O'Reilly Media, Inc., 2002).

[12] See section 2B of the Acts Interpretation Act.

[21] Tender Bundle p3 13 and ASOFIC paragraph [48].

[40] Tender Bundle page 321 - the email includes the fact that Clearview's database at that point in time had 3 billion images and that by the end of 2020 it hopes to have 30 billion images.

[42] As demonstrated by Clearview's interactions with the Royal Canadian Mounted Police Transcript p 127 and the clause in Exhibit A5 which prohibits use of the service in any way that violates any applicable local laws - Clause 3.

[50] See for example the definition of a Part 5.7 body in section 9 and the elaboration of the scope of the phrase in section 21.

[55] See the reference to the hypothetical question in Luckins v Highway Motel (Carnarvon) Pty Ltd [1975] HCA 50; (1975) 133 CLR 164 at paragraph [9] which is the foundation of Justice Perram's reasoning..

[59] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257, 268-268 Milne v The Queen [2014] HCA 4 at [38].

[63] See the comments of Allsop CJ in _Facebook In_c. at [2].

[65] See in particular item 6 on page 218 noting the qualifying remarks of Justice Perram in Facebook Inc at [72].

[70] See definition in section 6.

[73] See for example the case study at Tender Bundle p 276.

[74] Section 6.

[77] Section 13(1).

[78] Macquarie Dictionary Online - definition of 'biometrics'.

[79] See the Oxford English Dictionary entry for 'biometric', definition 2.

[82] Tender Bundle p 269, p 406 and 407.

[86] See Schedule 1 of the Privacy Amendment (Private Sector) Act 2000 No 155.

[87] Privacy Amendment (Enhancing Privacy Protection) Act 2012 EM at Schedule 4 Item 4.

[88] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

[89] [2014] HCA 9.

[90] See Facebook Inc. at [22] to [24].

[91] Privacy Amendment (Enhancing Privacy Protection) Act 2012 EM at Schedule 4 Item 4.

[92] Applicant's SOFIC paragraph [80].

[94] See the affidavit of Laura Rose Butler of 2 September 2022 and in particular the correspondence at LRB 6 to LRB 9.