Facial Recognition: A New Trend In State Regulation

Published date04 May 2022
Subject MatterCorporate/Commercial Law, Litigation, Mediation & Arbitration, Privacy, Corporate and Company Law, Privacy Protection, Class Actions
Law FirmWomble Bond Dickinson
AuthorMr E. Barlow Keener

Ten years ago, the average person did not know what facial recognition was. Now, especially after its use in locating persons involved in the January 6, 2021, riots at the US Capitol, almost everyone knows its utility and power to find anyone who shows up in a video or "snap." Many from both the left and the right sides of the aisle see its unregulated use as an intrusion into the privacy of the individual. State legislators, as explained below, are exercising their power to regulate the use of facial recognition by law enforcement and by private companies. The states are taking facial recognition regulation into their own hands while the federal government is at a standstill on passing privacy laws curbing the use of this powerful new software tool.

We pose and smile for selfies with friends and put them on Facebook, TikTok, Instagram, and Snapchat. We look up as we walk outside and see cameras on every street intersection pole, or at the city park. We believe they are looking for cars going through red lights or watching out for crime. What we may not realize is that our favorite apps and ever-present street cameras are using facial recognition to identify us and, using advanced A.I. software, tag us as we move from location to location. We also may not be aware that cameras can identify us by our gait and body movement, as well as our face. "Walk that way" has a new meaning.

New York City police reportedly used facial recognition from 15,000 cameras 22,000 times to identify individuals since 2017.1 Fear of crime is driving us, or being used to drive us, to give up our privacy by allowing law enforcement to use those ubiquitous street cameras to identify where we are, and even to listen to our words to recognize us. This technique, commonly called "voiceprint" identification, lets surveillance equipment instantly turn our words into searchable text as we walk down the street.

The legal issue of advanced technologies taking away our right of privacy is not new. In 1890, a young Boston lawyer, Louis Brandeis, co-wrote a Harvard Review article asserting that privacy was a fundamental right even if not listed as a right in the US Constitution. Brandeis was upset that two new inventions, the Kodak camera and the Edison dictating machine, were invading our private lives, exposing them to the public without our consent:

Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops.2

In 1928, almost four decades later, then-Supreme Court Justice Brandeis penned his famous Olmsted v. US dissent on the issue of privacy. The case involved law enforcement wiretapping a new device located on the sidewalk: the public telephone. Brandeis explained:

Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard.3

Justice Brandeis advocated limiting law enforcement's use of wiretapping. His views on regulating...

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