The Inconsentability of Facial Surveillance

Artificial Intelligence and Privacy and Security

Article Snapshot


Woodrow Hartzog and Evan Selinger


Loyola Law Review, Vol. 66, pp. 101-122, 2019


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.

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