The Inconsentability of Facial Surveillance

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


Key Takeaways:
  • "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.



Evan Selinger

About Evan Selinger

Evan Selinger is a Professor of Philosophy at Rochester Institute of Technology and an Affiliate Scholar at Northeastern University’s Center for Law, Innovation, and Creativity. He is also a Senior Fellow at the Future of Privacy Forum. Professor Selinger’s research primarily addresses ethical issues concerning technology, including artificial intelligence, science, and the law.

Woodrow Hartzog

About Woodrow Hartzog

Woodrow Hartzog is Professor of Law at Boston University School of Law. Professor Hartzog’s scholarship and advocacy focuses on privacy and technology law. His research focuses on the complex problems that arise when people, organizations, and governments use powerful new technologies to collect, analyze, and share human information. He is an internationally recognized expert in the area of privacy, media, and robotics law.