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Facial Recognition Technology and the Law: What You Need to Know

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How amazing was it when phones were updated to let you open them without typing in a passcode? Just stare at the screen and boom! Unlocked and ready to go — with just your lovely face. This, my friends, is called ‘facial recognition’ technology. Of course, this technology, like so many others, comes with its very own emerging legal issues — ahem, bring on the lawyers! — something to take into consideration as you plot out your career in law. After all, that face of yours (along with a little facial recognition tech) might just be the literal key to the law firm building where you can finally start making some real cash.

What is facial recognition technology?

Facial recognition is a technology that uses a method of biometric identification to verify or authenticate a person using a photo or video. It does this by collecting a set of data based on a series of body measures, which are generally your unique physical features like your face, eyes, and head size. This creates a digital ‘map’ of the human face that is scanned to match and identify you. Pretty impressive.

How is facial recognition technology evolving?

Most of us associate facial recognition with the technology that unlocks our phones, helps us tag friends in that new Instagram post or verifies our identity at airport border control checkpoints. But just like in the movies, facial recognition is always evolving.  It’s already being used to conduct security checks before entering certain buildings. And a more extreme use of this technology is for security in crowds, in which CCTV cameras and drones are able to identify individuals at a distance and in a crowd. 

The development of this technology has been rapid with some of the top dogs predicting the industry to grow to $9.6 billion in 2022 (up from $4 billion in 2017). And facial recognition technology is on course to offer even more benefits for society. It can help prevent and solve crimes by being able to identify someone accurately. It can also enable us to live a little bit more efficiently, moving away from archaic things like carrying around identification documents and the like. 

Of course, as with any big technological advancement, things can get complicated. And facial recognition technology is really complicated, especially when it comes to the law.

What are the top legal issues of facial recognition technology?

The legal and social concerns associated with facial recognition might raise the hairs on the back of your neck, especially because the technology is moving faster than governments and regulators can keep up! Let’s take a look at some of these legal issues: 

1. Privacy

Sure, using facial recognition can be great if we are “saving the world” one criminal at a time or trying to find someone lost in a crowd. But what about your privacy? An extreme example is the Chinese government’s use of facial recognition technology to monitor its population’s movements using surveillance drones and CCTV. Should this technology also be used to fine someone for jaywalking across the street or monitoring their behavior and potential to be a suspect? 

How you can make a difference: Many governments are acting swiftly to find the right balance. To do this, they work closely with a number of specialist law firms to draft laws that both protect privacy while also enabling the benefits of this technology for a safer society.

2. Data Security

Let’s say a company like Facebook has already collected your biometric data: they have your facial features and have popped them into their algorithm. Where is that very sensitive and personal data going? Are they selling it? Have they offloaded it to their subsidiaries? Are they providing it to the government? What if there is a data breach? For example, did you know that in 2019, more than 100,000 photos and license plates were stolen from the Border Agency database? 

How you can make a difference: The laws ensuring data security for facial recognition are extremely important. It is critical for there to be appropriate policies put in place for all companies that collect this sensitive data and that users understand those policies. Lawyers need to be razor-sharp on the clauses they draft into contracts on this, or they may find their clients walking up the steps to court to defend themselves from a serious breach of data privacy law. 

3. Criminal Justice

OK, so back to fighting one criminal at a time. We see the benefits of facial recognition in catching the bad guy, but what if the technology catches the wrong guy? It’s becoming more and more mainstream to use this technology as a tool for identifying suspects. Police officers can take a photo of a potential suspect in the field, run it through facial recognition software, and out pops the details based on an algorithm. However, the technology won’t always be accurate so it can be extremely dangerous to solely rely on it as a source of evidence. 

How you can make a difference: We need to think about the place this technology has in our criminal justice system and ensure that there are appropriate legal and civil rights checks and balances in place before allowing it to steer criminal law. This is also where the work of public defenders and criminal defense lawyers comes in. 

4. Human Rights

Facial recognition is deeply polarizing when it comes to human rights. In fact, on August 11, 2020, a UK court ruled that facial recognition technology violates human rights. This case reflects a growing movement emphasizing that facial recognition technology violates personal freedoms, invades privacy, and is discriminatory. Business leaders, such as IBM’s CEO Arvind Krishna, have come out stating that they will not progress the research and development of this technology. In a June 2020 letter to Congress, Krishna states that IBM “firmly opposes and will not condone uses of any technology, including facial recognition, offered by other vendors for mass surveillance, racial profiling, and violations of basic human rights and freedoms.” 

The technology has been found to be discriminatory against people of color, with Black people being the most at risk of being misidentified by facial recognition systems. This is discrimination at its worst and, without sufficient checks and balances could be an extremely dangerous tool that perpetuates the violation of fundamental human rights.

How you can make a difference: Human rights lawyers will be needed at the helm to tackle such human rights violations and protect the rights of the vulnerable populations and marginalized groups affected by these practices.

5. Intellectual Property 

How does facial recognition technology learn to recognize the billions of faces in the world? The data used to train facial recognition technology is often derived from copyrighted datasets, such as the largest publicly available dataset of roughly 100 million photos, known as the YFCC100M. This dataset, compiled by Yahoo Flickr, is subject to the Creative Commons license, under which creators retain the copyright of the work (i.e., potentially millions of photos of faces) while any number of others are allowed to copy, distribute, and make some use of their work. Luckily, or unluckily, section 107 of the Copyright Act permits the “fair use” of copyrighted works for research purposes. That means many companies are legally permitted to use the YFCC100M dataset to train their facial recognition systems under the Creative Commons license. Under copyright law, the use of these images is fair game. But should copyright law supersede privacy? Who should control the intellectual property rights to your image? 

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