As Facial Regulation Technology is Poised to Enter Everyday Life, Regulators Express Concern

by Davis Wright Tremaine LLP
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Recent news stories have highlighted the negative privacy implications of facial recognition technology. For example, a new app for Google Glass will pair facial recognition with data from social media and dating sites, allowing users to instantly see personal information about strangers they pass on the street. (Though Google does not permit facial recognition software to be used on its Google Glass platform, the app could be used on jailbroken Google Glass devices.) Forbes reports that Senator Al Franken has written to the app developer to express deep concern and ask it to delay the app’s launch, or at least require people to opt in before their data is displayed to others. Meanwhile, the New York Times reports that some retail stores and airports already use facial recognition technology, and other such uses are on the way. The Times quotes Jessica Rich, director of the FTC’s Consumer Protection Bureau, as saying, “This is another reason that we need omnibus privacy legislation.”
On Feb. 6, 2014, the National Telecommunications and Information Administration (NTIA), a division of the Department of Commerce, held the first in a series of meetings about the commercial use of facial recognition technology. The more than 120 attendees included representatives from business, advertising, and government as well as privacy advocates. Seven additional meetings are scheduled between February and June of this year. The NTIA hopes that the meetings will lead to a voluntary code of conduct.
It’s clear that facial recognition involves a significant potential for negative consequences. Individuals might use the technology to stalk or harass others or commit identity theft; the government could use the technology to monitor citizens’ behavior in ways that violate their right to privacy or free assembly; and no one wants to be falsely identified as a terrorist or a shoplifter because of imperfections in the technology.
In all the talk of the potential creepiness of the technology, however, the potential benefits seem to get lost in the shuffle. For example:
  • Law enforcement can use facial recognition software to find missing persons or recognize a criminal suspect in a crowd.
  • Retailers can match consumer data with individual consumers’ faces as soon as consumers walk into the store, in order to make special offers based on past profiles and preferences. Consumers might no longer need to carry and swipe loyalty cards.
  • In the 2001 movie Minority Report, consumers received targeted advertising messages as they passed by billboards. Both advertisers and consumers benefit from messages that reach only the people who would be most interested in them. Several companies are experimenting with face-scanning billboards, which are currently limited to determining age and gender; and the Tesco retail chain has announced that it is installing face-scanning billboards at its checkout lines in all of its U.K. stores.
  • Hotels, restaurants, casinos, and other hospitality-related business can recognize their best customers and treat them as VIPs instantly.
  • Retail stores can use facial recognition to focus their security efforts on previously-convicted shoplifters, instead of the current system of security cameras that watch everyone in the store. In addition, some retail stores have been accused of profiling shoppers by race. Facial recognition software could reduce the need to watch every shopper, and eliminate the temptation to profile consumers based on anything other than their past illegal behavior.
  • Long security lines at airports and office buildings could be reduced as individuals’ faces become their photo I.D.
Businesses that are considering using facial recognition technology should pay close attention to the outcome of the NTIA meetings and should consider what features (such as opt-ins and opt-outs) might reduce regulators’ and consumers’ privacy concerns about the technology.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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