Facing “industry stakeholders [that] were unable to agree on any concrete scenario” in which affirmative consent should be obtained from individuals before employing facial recognition technologies, nine consumer advocacy organizations made an about-face and withdrew from the multistakeholder process coordinated by the National Telecommunications and Information Administration (“NTIA”). These organizations, which include the Center for Democracy and Technology and the Electronic Frontier Foundation, stated that based on the latest multistakeholder meeting earlier this month they believe the process is not likely to lead to a set of rules with adequate protections for consumers.
NTIA’s multistakeholder process began in December 2013 as a means of developing a voluntary, enforceable code of conduct to apply the White House’s Consumer Privacy Bill of Rights to facial recognition technologies. This process also followed a workshop and report from the Federal Trade Commission in 2011 and 2012 that proposed some best practices for employing facial recognition technologies.
Over the course of a dozen meetings organized by NTIA over the last 16 months, industry representatives and consumer advocates went back and forth on how best to protect consumers without limiting the potential benefits of the facial recognition. The latest meeting, held on June 11, included on the agenda discussions of such issues as how a code of conduct should address (1) facial recognition when it is used for anti-fraud, loss prevention, security, and authentication; (2) the rights of a subject of facial recognition to audit the use of data about them; (3) individuals being denied access to products and services based on erroneous identifying information; and (4) how and when consent must be obtained for collecting and sharing facial recognition data.
It was this last issue that led to the recent announcement by the consumer advocacy organizations that they would no longer be participating in the process, claiming that some form of an opt-in regime is necessary to protect consumers but that this process would not lead there. Despite An NTIA spokeswoman stating that the meetings would continue, it is difficult to imagine much progress will be made without the buy-in or even participation of consumer advocates.
This most definitely does not spell the end of the government’s involvement in regulating facial recognition technologies, however. As industry continues to develop better facial recognition software, both industry and governments continue to develop new uses for facial recognition. So far two states – Texas and Illinois – have adopted laws regulating facial recognition technology and it is likely that other states will follow. In the courts, the Illinois law forms the basis of a pending lawsuit against Facebook over that company’s use of facial recognition. And the consumer advocates who walked out of the NTIA process are certain to show their faces again in Congress to press for a federal law addressing facial recognition.