Author(s)
Source
Loyola Law Review, Vol. 66, pp. 101-122, 2019
Summary
People may be asked to consent to uses of facial recognition technologies, but do not understand the implications of these technologies for their own autonomy or for society as a whole, and cannot give valid consent.
Policy Relevance
Lawmakers should prevent the use of facial recognition technology until its implications are better understood.
Main Points
- "Face surveillance" involves the use of facial recognition and faceprint databases to identify people, monitor behavior, or influence or manage people.
- Many proposals for regulating facial recognition technology incorporate consent rules as a way to protect those faces that are being tagged and tracked. But consent is a broken regulatory mechanism for facial surveillance.
- Nancy Kim's work in Consentability: Consent and Its Limits, considers whether consent can be valid in situations such as organ sales, or traveling to Mars; her analysis concludes:
- The social benefits of a consentable activity must outweigh the social harms.
- Consentability should promote autonomy and liberty for all citizens.
- The greater the risk to autonomy posed by an activity, the more humans are entitled to understand.
- Valid consent cannot be given for face surveillance.
- People do not know and cannot understand the threats that it poses to their individual autonomy.
- Individual consent does not address the threat that face surveillance poses to privacy protection from obscurity, or to collective autonomy.
- The larger that the infrastructure of face surveillance becomes, the easier it will be for state actors to bypass procedural protections that govern access to data collected from industry; for example, location data.
- Lawmakers should enact a moratorium on the use of facial recognition systems until they can be properly considered by lawmakers and society.