Facial Recognition Technology and a Proposed Expansion of Human Rights.

• Author: Ryan, Catherine
• Date: 01 January 2024

TABLE OF CONTENTS
                I. INTRODUCTION 88
                II. BACKGROUND 89
                A. A Brief History of Human Rights 89
                B. What Is Artificial Intelligence? 93
                C. Facial Recognition Technology and Biometric Data 96
                D. Domestic and International Government Action 98
                1. The United States Federal Outlook on Facial Recognition
                Technology 98
                2. Domestic Case Law 103
                3. International Action 105
                III. THE RIGHT TO PRIVACY OF ONE'S FACIAL BIOMETRIC DATA SHOULD
                BE CONSIDERED A HUMAN RIGHT 107
                A. Biometric Data as a Civil Human Right 107
                B. Business Incentives in Facial Recognition Technology 109
                C. Proposed Domestic and International Action 111
                IV. CONCLUSION 113
                

I. INTRODUCTION

One way to understand technology is through how it distributes power. The classic technological innovation--the wheel--began as a pottery tool in 3500 B.C. (1) When turned on its side, it resulted in a dramatic increase in farming capacity and an improved economy for agrarian societies. (2) The wheel also removed barriers to going to war, as soldiers no longer had to walk on foot. (3) While food output increased, benefitting communities generally, so did the ease with which wealthier nations could exert military power over poorer nations.

This is an important lens because the distribution of power is rarely equitable, and an imbalance of power invites abuse. For example, the crossbow appeared in Italy in the 10th and 11th centuries when metals were substituted for wood in its construction, making it a much-feared weapon of war. (4) Decades later, in 1139, Pope Innocent II attempted to outlaw crossbows as too dangerous of a weapon for war, realizing the disproportionate advantage this innovation would give certain countries. (5) More recently, wiretapping was invented in the late 19th century and became a common practice for the government and commercial industries in the early 20th century. (6) Public opinion soon soured on the practice following the Watergate scandal, as individuals realized the threat this technology could pose to the private citizen if it were abused. (7) Even the Laws of War respond to technological innovation to prevent abuse by ensuring regularly updated elementary considerations of humanity. (8)

Extreme abuses of power, those that create an unease in peoples' deeply held notions of humanity, lead countries to identify violations of fundamental human rights and act to prevent such atrocities from occurring again. The use of facial recognition technology (FRT) poses a great and systemic risk to individuals worldwide and violates notions of humanity. An individual's facial biometric data, often exploited using FRT without the individual's consent, is unique and inherently individualistic data that should be protected and codified as a human right. The best way to codify such a privacy right is through domestic legislation and executive action, and international agreements, specifically in applying the Ruggie Principles to facial recognition.

This Note begins with a background on the development of human rights, focusing on the process by which human rights are determined. This section concludes by proposing a process by which human rights come to fruition, the Progressive Theory of Human Rights, following events that upend peoples' deeply held notions of humanity. Next, this Note explains the relevant technology and terms of Artificial Intelligence (AI) and of FRT as a sub-category of AI. This section provides the reasoning for assuming that FRT is a substantially distinct form of AI and requires specialty rules and regulations. The Note then examines existing FRT case law, regulations, and authoritative statements and actions, both domestic and international. This section concludes by highlighting the most influential authorities that will inform the structure and substance of the proposed legal scheme. The background section ends with an exploration of the real-world implications of the use of facial recognition and the misaligned incentives of large corporations.

The Note proposes why the right to privacy of one's facial biometric data should be a protected human right. This section first argues how this right to privacy is a natural extension of the existing doctrine of human rights. It then argues in the alternative that the right to privacy of one's facial biometric data fits squarely within the first stage of recognizing a new human right. It concludes with a proposed framework of (1) domestic legislation, pulling from sources like the European Union's (EU) General Data Protection Regulation (GDPR) and domestic state privacy laws; (2) executive branch action in the form of agency mandates and exploration of AI-specific committee formation; and (3) international action through applying the Ruggie Principles to FRT to guide understandings of corporate responsibility for human rights in the use of FRT and through coordinated international agreements.

II. BACKGROUND

A. A Brief History of Human Rights

Human rights did not descend as proclamations from the skies, nor were they created and codified out of the goodness of those in powers' hearts. They developed from the ground up--through organizing and activism--following atrocities and major technological developments that created sufficient unease with currently accepted practices that violate deeply-held notions of humanity. Nor do they exist in a vacuum: any consideration of human rights must acknowledge and incorporate the intersecting considerations of modern philosophy, society, culture, and politics. (9)

Take for example the freedom from "torture or cruel, inhuman, or degrading treatment or punishment." (10) Beginning in ancient Greece and continuing well into the 20th century, physical torture was a common form of punishment and often used as a means of justice. (11) The practice held significant political and social value, as well as a means for judicial expedition, as those accused of heresy or witchcraft favored admitting guilt over potential torture. (12) Nations with similar progressive ideologies began abolishing the practice in the 18th century for, among others, practical and moral reasons, as social understandings of humanity and dignity evolved. (13) However, the practice of torture was first recognized as a violation of international law in 1948 with the Universal Declaration of Human Rights, a direct response to the atrocities witnessed in the Second World War. (14) It was only through tireless efforts by non-governmental organizations and community groups in the 1970s, 80s, and 90s raising sufficient cries of outrage that actual instruments were put in place to hold perpetrators liable for acts of torture. (15)

The question then is, if not from the sky, nor from the better angels of our nature, where did human rights originate? While subtly hinted at in revolutionary declarations such as the 1776 American Declaration of Independence and the 1789 French Declaration des droits de l'Homme et de du citoyen (Declaration of the Rights of Man and Citizen), the enshrining of human rights into international law is a relatively recent development, beginning most notably with the aforementioned Universal Declaration of Human Rights (UDHR) of 1948. (16) The UDHR was an atonement for sins of the past and a promise to generations of the future, where--as of this writing -- 192 member nations have signed and mutually agreed upon basic understandings of human rights. Each subsequent treaty and convention reflects the growing understanding of what rights individuals must possess to maintain their inherent dignity and humanity. (17) The UDHR originally listed six "families" of human rights (18) which the United Nations broadly categorized into three "generations" of human rights, "... as an echo to the cry of the French revolution: Liberte (freedoms, "civil and political" or "first generation" rights), Egalite (equality, "socio-economic" or "second generation" rights), and Fraternite (solidarity, "collective" or "third generation" rights)." (19)

This Note focuses on the first generation of rights, civil and political rights, as FRT poses the biggest risk to this collection of freedoms. The foundation of these rights is based on the UDHR, the European Convention on Human Rights, and the International Covenant on Civil and Political Rights (ICCPR), which was adopted in 1966 and makes up one-third of the Geneva Convention. (20) The ICCPR in particular enshrines certain personal liberties and freedoms to all persons to liberty and security within their person, the right to liberty of movement, and to be free from restrictions on such liberties unless necessitated by law or national security. (21) Article 17 in particular guarantees the freedom from "arbitrary or unlawful interference with [one's] privacy." (22) The use of biometric data arbitrarily or unlawfully--that is, without proper consent or knowledge--directly violates the basic rights protected by the ICCPR, and therefore, the right to one's own biometric data should be considered a civil human right.

Consistent among these foundational documents--the UDHR, the European Convention on Human Rights, and the ICCPR -- are the principles of freedom, self-determination, and the individual states' obligations to protect those rights and address any threats to them. (23) These documents also create the parameters within which new human rights might emerge to ensure the continued protection of these freedoms. (24) However idealistic this may sound, the actual process is much trickier.

With every generation of rights comes the benefit--and burden--of hindsight to better understand the process that leads to the creation of a recognized human right. This process never exactly repeats itself, but it does rhyme. This Note examines the creation of a human right as broadly occurring within three linear stages, with many zigs and zags, steps forward and backward, in between. This process is referred to in this Note as the Progressive Theory of Human Rights...