Keeping One's Public Face Private

• Author: John M. McNichols
• Pages: 2-3

By John M. McN ichols, Litigatio n News Contributing Editor

Keeping One’s Public Face Private

still photograph or vide o. Initially develop ed in the 1960s,

it relies on machine -learning algorithms to teach co mput-

ers to appreciate the dist inctive features of a face and to

distingu ish it from other objects, including other fac es. The

technology r st came into widespread use in the 1990 s,

when state driver’s licens e bureaus began usi ng it to prevent

applicants from obtai ning multiple licenses under di fferent

names. More recent ly, it helped conrm the de ath of Osama

bin Laden.

By no means has facial re cognition technology been lim -

ited to government use. Person al-device ma nufacture rs offer

it as an enhanced s ecurity feature, allowi ng a user to unlock

a device by presenti ng his or her face. Ai rlines and sport ing

arenas have employed it to assist in se curity screening, and

retailers have exp erimented with it to track shoplifters. N or

have all of its private-se ctor uses focuse d on personal secu-

rity. Social media c ompanies employ a form of facia l recog-

nition technology t hrough programs that allow users to s ort

and group personal photog raphs by the persons who appear

in them.

Legal Controversies and Responses

Concerns that t he widespread use of biometric technology

would infringe on p ersonal privacy elicited a legal react ion.

In 2008, I llinois enacted the Biometric I nformation Privacy

Act (BIPA), becomin g the rst state to require notice and

consent before collec ting or using private citizens’ biometric

information, i ncluding “facial geometry.” California fol-

© Scharfsin n86 /Getty Imag es

Given the widespread mask-weari ng caused by

the COVID -19 pandemic, 2020 w ill likely be

remembered as a year of covered fac es. But it

was also a year of profound atte ntion to faces.

Social un rest and civil disturbance s gave rise to

efforts by law enforcem ent and private citizens to identify the

persons involved—b oth peaceful activists and v iolent crimi-

nals. Persons revie wing the footage of such incidents were in

some instance s aided by facial recognition technolog y, a form

of artici al intelligence capable of comparing photograph ic

images of human fac es and identifying potential m atches.

Although not as reliable a s other biometric matching

techniques, suc h as iris scan s or ngerprints , facial recog-

nition technology h as the critical advantage of its ability

to function wit hout the cooperation or even awareness of

the person under an alysis. Given the near-ubiquitous pres-

ence of cameras and t he vast reservoir of ele ctronic images

available for cross-reference—every thing from mug shots

to Instagra m seles—the technolog y provides an invaluable

tool to law enforcement and nation al security ofcials se ek-

ing to identify susp ected criminals or terror ists. But for the

very same reasons , the use of facial recognition tech nology

raises concern s among privacy activists and civil lib ertarians

who see in it the potenti al for abuse.

Facial Recognition Technology

Facial recognit ion technology is a rel atively new type of

software capable of an alyzing human facial feature s in a

2 | S ECTION OF LITIGATION

Published in Litigation News Volume 46, Number 3, Spring 20 21. © 2021 by the American Bar A ssociation. Repr oduced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

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