{"id":2971,"date":"2020-05-01T20:07:39","date_gmt":"2020-05-01T20:07:39","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=2971"},"modified":"2020-05-01T20:07:39","modified_gmt":"2020-05-01T20:07:39","slug":"smile-youre-on-camera-the-implications-of-the-use-of-facial-recognition-technology","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2020\/05\/01\/smile-youre-on-camera-the-implications-of-the-use-of-facial-recognition-technology\/","title":{"rendered":"\u201cSmile! You\u2019re on Camera\u201d \u2013 The Implications of the Use of Facial Recognition Technology"},"content":{"rendered":"

(Source<\/a>)<\/em><\/p>\n

What is the first thing that comes to mind when you hear the phrase \u2018facial recognition technology\u2019? Is it a TV show or movie scene where law enforcement is staring at computer monitors as faces in a database cycle through as a software program looks for a match to an image of a suspect, victim, or witness in the case? Many associate the phrase \u2018facial recognition technology\u2019 with the government and law enforcement; an association which is reinforced by the way in which numerous procedural TV shows (such as FBI<\/em><\/a>, Hawaii Five-0<\/em><\/a>, Blue Bloods<\/em><\/a>, and Law and Order: SVU<\/em><\/a>) display facial recognition in their episodes. For many Americans, those TV and movie scenes are their primary exposure to facial recognition, resulting in the stronger association of facial recognition as a law enforcement aid. While facial recognition technology (also known as facial recognition or FRT<\/em><\/a>) is certainly a tool used by government and law enforcement officials, its uses and capabilities span far beyond what is depicted by the entertainment industry.<\/p>\nThe concept of facial recognition originally began in the 1960s<\/em><\/a> with a semi-automated system, which required an administrator to select facial features on a photograph before the software calculated and compared data. In the decades following, the technology improved, becoming entirely automated. The U.S. federal government invested heavily in the technology\u2019s development in the mid-1990s<\/em><\/a>, assessing various prototypes of facial recognition through the Defense Advanced Research Products Agency<\/em><\/a> (DARPA). While the idea of facial recognition technology had been around for decades, the American public\u2019s first knowledge of and reaction to the technology followed a trial implementation<\/em><\/a> at the 2001 Super Bowl where FRT compared surveillance images against a database of digital mugshots. Throughout the past two decades, this technology has become widespread, particularly within government and law enforcement communities, by providing support as an investigative and preventive tool to help identify missing children, minimize fraud, and combat passport fraud<\/em><\/a>.\n\nThe government\u2019s investment and continued use over the past two decades, however, \u201cpropelled face recognition from its infancy to a market of commercial products,\u201d<\/em><\/a> resulting in the use of facial recognition in both public and private arenas. Aside from serving as a tool for law enforcement, today\u2019s version of facial recognition technology also aids corporations, functioning as a \u201csecurity feature of choice for phones, laptops, passports, and payment apps.\u201d<\/em><\/a> Major corporations such as Facebook and Shutterfly use facial recognition as part of their photo-tagging software<\/em><\/a> whereas others like Microsoft and Apple use facial recognition technology as a security feature<\/em><\/a> for users to unlock their phones and computers. Even companies like The Home Depot and Lowe\u2019s<\/em><\/a> are implementing facial recognition software, relying on it as a loss prevention tool.\n\nDespite the technology\u2019s increasingly pervasive use in the private and public sector (exemplified by London\u2019s recent announcement<\/em><\/a> that the city will be incorporating live facial recognition technology into the city\u2019s surveillance cameras), clear guidelines and policies addressing legal and privacy concerns do not yet exist. Some jurisdictions have focused on addressing the issues regarding the public sector\u2019s use (i.e., the police\u2019s use of facial recognition as an investigative tool and as a complement to surveillance systems). San Francisco<\/em><\/a> and Oakland<\/em><\/a> issued bans on facial recognition within their respective jurisdictions, specifically prohibiting use<\/em><\/a> by police and other local agencies, citing bias concerns<\/em><\/a> (including the technology\u2019s historically higher inaccuracy rate with people of color and women) as part of the reasoning behind the ban.\n\nOther jurisdictions have prioritized the issues surrounding private companies\u2019 use of facial recognition technology. For instance, the City Council in Portland, Oregon<\/em><\/a> is exploring a potential ban on the use of facial recognition by private entities. The city council\u2019s proposal has created tension<\/em><\/a> between local legislators and businesses, with many business owners concerned that an outright ban could negatively impact their ability to grow and protect their businesses. A few other states, notably Illinois, have already enacted legislation that encompasses private companies\u2019 use of facial recognition. Illinois\u2019 Biometric Information Privacy Act (BIPA)<\/em><\/a> permits citizens to sue corporations for collecting or storing their biometric information. In the landmark case Rosenbach v. Six Flags Entertainment Corp.<\/em><\/a>, decided in January 2019, the Illinois Supreme Court \u201cheld that private individuals may bring suit even if the only harm was a violation of their legal rights.\u201d<\/em> The Illinois Supreme Court sided against Six Flags, upholding citizens\u2019 right to sue<\/em><\/a> corporations for collecting biometric data without informing consumers how that data would be used. This expansive reading of the statute opens corporations up to significant liability issues stemming from the procedural requirements for the collection and storage of biometric data in Illinois. In fact, class action lawsuits against major corporations have been filed since the Illinois Supreme Court\u2019s ruling. These class actions are targeting tech giants like Facebook<\/em><\/a>, who recently agreed to a settlement of $550 million for its class action stemming from the use of the platform\u2019s photo-tagging software, as well as brick-and-mortar retailers The Home Depot and Lowe\u2019s<\/em><\/a>, who are currently battling a class action lawsuit arising out of the use of facial recognition as a loss prevention tool in stores.\n\nAlthough some legislatures have attempted to address legal and privacy concerns surrounding facial recognition technology by creating restrictions or parameters on the technology\u2019s use, many jurisdictions do not have any laws directed focused on FRT. Even the few jurisdictions \u2013 such as San Francisco and Illinois \u2013 that have enacted legislation are still struggling to navigate regulation and enforcement. Academics<\/em><\/a> who have studied and identified biases in the technology voiced their concerns regarding the sale and use of FRT, stating that \u201cthese systems have systemic design flaws that have not been fixed\u2026 [which] may well negate their effectiveness.\u201d<\/em><\/a> These bias concerns have become politically and socially significant, with jurisdictions and members of Congress rethinking<\/em><\/a> a larger roll out of facial recognition technology. Privacy advocates focus more on issues arising from the collection, storage, and potential distribution of individuals\u2019 biometric information. Specifically, these advocates point to the issue of consent, noting that individuals\u2019 faces are collected and then stored in a database without their knowledge or consent. This issue of consent is the centerpiece of the class action lawsuits against The Home Depot and Lowe\u2019s<\/em><\/a> \u2013 the plaintiffs\u2019 central arguments are that the corporations violated Illinois\u2019 BIPA by using facial recognition with their store surveillance systems as a loss prevention tool. Both suits, however, were recently withdrawn<\/em><\/a> by the plaintiffs, without explanation or court action. Despite the withdrawal of these cases, the issue of consent is still being challenged and explored, as evidenced by the March 2020 filing of a lawsuit against the Chicago Blackhawks<\/em><\/a>. <\/em>In the complaint, the plaintiff alleges that the National Hockey League team has scanned his and other fans\u2019 face biometrics at home games at the United Center using the facility\u2019s security cameras<\/em><\/a> since 2014. The progression of this lawsuit has the potential to clarify requirements regarding notice and consent for brick-and-mortar retailers, entertainment venues, and businesses operating out of a physical location.\n\nOut of all these debates, a single question arises \u2013 how will our society choose to balance technology\u2019s pervasiveness in everyday life with individual privacy? Given the widespread use of camera and surveillance systems by public and private entities, society must dictate when individuals still have an expectation of privacy when out in public. Furthermore, individuals must determine how much privacy they are willing to forgo for the ease and convenience of technology.\n\nSociety, however, has not yet struck this balance between privacy and facial recognition technology. As the bias concerns voiced indicate, the technology\u2019s accuracy in properly identifying individuals \u2013 particularly those of color \u2013 needs to improve<\/em><\/a>, especially since FRT serves as an investigative tool for law enforcement. These concerns have gained political and societal momentum, further fueling the debates over facial recognition technology. Facial recognition is becoming more commonplace in everyday life, however, and some Americans have already chosen to relinquish some individual privacy for the convenience of the technology. For instance, Apple\u2019s Face ID<\/em><\/a> and Microsoft\u2019s Windows Hello<\/em><\/a> have been widely accepted by consumers in the few years since their respective launches. Thus, it appears that society has generally accepted the use of facial recognition technology in personal electronic devices. The sticking point instead seems to be about the technology\u2019s use in connection with surveillance and camera systems by public and\/or private entities.\n\nThe modern version of facial recognition technology is still in its earlier developmental stages, resulting in a lack of clarity regarding its potential uses and capabilities. Subsequently, legislative enforcement and regulatory policies remain largely undeveloped and the few jurisdictions with enacted legislation are struggling to navigate this unknown territory. As facial recognition technology continues to improve, however, society must determine how much privacy it is willing to give up in exchange for the efficiency, ease, and convenience of facial recognition technology.\n\n \n\n\"eliseAbout the Author: Elise Kletz is a second-year law student at Cornell Law School. Elise earned a B.S.B.A. from the Olin Business School at Washington University in St. Louis, where she completed a double major in Leadership & Strategic Management and in Marketing. Currently, Elise serves as an editor for The Issue Spotter and serves as Co-President for the Business Law Society and the Jewish Law Student Association.\n\n \n\nSuggested Citation: Elise Kletz, \u201cSmile! You\u2019re on Camera\u201d \u2013 The Implications of the Use of Facial Recognition Technology<\/em>, Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter, (May 1, 2020), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/smile-youre-on-camera-the-implication-of-the-use-of-facial-recognition-technology.<\/a>","protected":false},"excerpt":{"rendered":"

(Source) What is the first thing that comes to mind when you hear the phrase \u2018facial recognition technology\u2019? Is it a TV show or movie scene where law enforcement is staring at computer monitors as faces in a database cycle through as a software program looks for a match to an image of a suspect,…<\/p>\n","protected":false},"author":1,"featured_media":2972,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,21,24,25,27,28],"tags":[609,694,879,1231,1511],"class_list":["post-2971","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-spotters","category-notes","category-policycontributor-blogs","category-recent-stories","category-student-blogs","tag-facial-recognition","tag-frt","tag-jlpp","tag-privacy","tag-technology"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2971","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2971"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2971\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/2972"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2971"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2971"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2971"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}