The commercial use of facial recognition technology
for security, access, marketing and customer service is rapidly growing. Privacy advocates argue that widespread use
of the technology will allow businesses to identify and track almost anyone in
public without their consent or even knowledge.
Businesses argue that individuals should not expect complete privacy in
public and that some loss of privacy is outweighed by the benefits the
technology offers consumers and businesses.
Multiple privacy, government and industry organizations have listed best
practices regarding the commercial use of biometric technology, but the
recommendations often conflict and no consensus has been reached.
Should businesses be required to obtain a person’s
consent, express or implied, before using facial recognition technology?
This comment has been removed by the author.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteYes, I think that businesses should be required to obtain consent before using facial recognition. At the very least I think that notice signs should be posted on buildings where facial recognition is being utilized so people have the option before entering. As far as the argument that people should not expect any level of privacy in public, I hope that as a society we have not reached the point where we under-value privacy to the point where we are willing to buy that argument.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteYes, businesses should be required to obtain your consent before using facial recognition technology. Obtaining express consent would be problematic, for the logistical reasons noted in Vik’s post, but implied consent should be obtained. Many stores post a notice when you walk in saying something to the effect of “video surveillance in use.” Implied consent could be obtained by posting a similar sign that says “facial recognition technology in use.” If the potential customer decides to go in to the business anyway, they have given their implied consent. In my view, this posting of the sign would be the brick and mortar store equivalent of Facebook or Google’s terms of agreement (although those terms are likely considered express consent) that cover the use of facial recognition technology. It is doubtful that these terms or the potential sign at the store would affect the majority of people’s behavior, but at least consumers are given notice of the use of facial recognition technology.
ReplyDeleteYes. Partly because I don’t believe people always are completely aware of the actual tradeoffs of their privacy and commercial convenience at the time they agree. Many argue that posting on social networking is a tradeoff of privacy and convenience; but, I would argue that the extent of that trade off is rarely fully understood. In regards to the level of privacy, giving a store/company your information for a rewards card or to state a preference for a product, is very different than companies using facial recognition to track your consumer behavior. Not only does this have the potential for price discrimination, it also opens the door for discrimination. Federal law should address this technology under the light of consumer law.
ReplyDeleteHowever, I see a great value in using such technology in the criminal context. Best practices and other polices may help to mitigate the abuses that could occur in the utilization of facial recognition technology. I can only imagine how much more effective an Amber Alert would be if Facebook shared the data with law enforcement.
Yes, businesses be required to obtain a person’s consent, express or implied, before using facial recognition technology. However, I do not know what this "consent" would look like. Consent by the user of the technology is not really the consent we are worried about. Therefore, how would the technology get consent of the person being identified? It would have to first identify the person, in order to contact them in some way and ask for consent. It seems like kind of a catch-22. As Kashmire Hill stated, the "[r]ule of thumb is usually that if you can see the camera, it can see you." Perhaps all that is left, then, is "implied" consent. But that seems like a slippery slope. How much reading-into-the-situation will businesses engage in if they are allowed to imply consent? I would be more comfortable with requiring express consent. But, as I just discussed, I don't know how this kind of consent could be obtained without first violating the person's rights without consent.
ReplyDeleteshould*
DeleteLike everything else in the law. It depends. I think business should be required to obtained from a person depending on the manner in which the business intends on using the facial recognition software. I think most would agree that a person does not enjoy a reasonable expectation of privacy with their likeness when they are walking around public. Moreover, using facial recognition software does not disclose a private fact about that person or reveal any other sensitive information (I think). Given an individual does not have an expectation of privacy in their appearance while they are in public, I do not think a business should be required to obtain consent to use this technology for security, marketing or customer service purposes. Businesses, however, should not be allowed to track a persons movement because that could then reveal private facts about a person. It is hard to elaborate on this issue without knowing to what extent a business could "track" a person. For example, Starbucks should be able to track which starbucks a customer frequents. However, businesses should not be allowed to share information with each other. For example, Starbucks should not be able to gain access to the information a sex toy shop my have from its own facial recognition software. This type of information aggregation and sharing has the potential to reveal too much private information about an individual. Starbucks should not be able to track which pharmacies, spas, or other business an individual patronizes.
ReplyDeleteNo (on express consent) and Maybe (on implied consent).
ReplyDeleteThe very nature of facial recognition technology is such that it will not practically allow obtaining a person’s express consent before his/her face has actually been recognized by the software, since until the question of a person’s identity is resolved, the question of express consent is not reached. Most facial recognition technology is automated and unsupervised. Consequently, the first step (identification) by the act of facial recognition makes the second step obtaining express consent prior to identification somewhat complicated. Identity is the key component, and it is not possible to exclude someone from identification without first identifying them using that exact technology.
With regard to implied consent by businesses that use facial recognition, I suppose that posting a notice might be adequate, so that a person is warned about the consequences of entering their premises. This policy could become complicated in places like malls, where businesses could potentially have some cross-coverage with regard to video-surveillance, which when combined with facial recognition and sharing of data, might again raise the kind of Catch-22 situation of identity and consent, described in the beginning. Therefore, I do not believe that businesses should be required to obtain express or implied consent with regard to the use of facial recognition software itself because doing so may prove impractical. However, businesses could be used to require consent with regard to being able to aggregate and use data collected through various online and in-person means.