Congress Faces Issues of Facial Recognition Technology

Advertising Law

Businesses would need the explicit consent of individuals before using facial recognition technology pursuant to new bipartisan legislation introduced in Congress.

The Commercial Facial Recognition Privacy Act of 2019 would mandate that companies that collect, store or process facial recognition data notify individuals about their use of such technology and obtain affirmative consent to do so.

Individuals should also be provided with an explanation of the reasonably foreseeable purposes, or examples, for which the data will be collected; the data retention and deidentification practices of the company; and if the company offers the ability to review, correct or delete information, the process to accomplish such action.

Senate Bill 847 would prohibit the use of facial recognition technology to discriminate against individuals and forbid companies from repurposing facial recognition data for a different purpose than that for which the individual provided consent. If the company wants to share the facial recognition data with an unaffiliated third party, it must obtain separate affirmative consent from the individual.

The proposed legislation, which would task the Federal Trade Commission with enforcement and leave room for states to establish their own, more stringent regulation of facial recognition technology, has already received the support of the Center for Democracy and Technology.

“Our faces are our identities,” Sen. Brian Schatz (D-Hawaii), co-sponsor of the bill along with Sen. Roy Blunt (R-Mo.), said in a statement. “So the responsibility is on companies to ask people for their permission before they track and analyze their faces.”

To read Senate Bill 847, click here.

Why it matters: The federal legislation would impose requirements upon the use of facial recognition technology but would not preempt tougher state laws. Illinois and Texas already have measures in place, with a similar measure pending in Washington. Several lawsuits have been filed pursuant to the Illinois statute, which permits private rights of action and provides for damages of up to $5,000 per violation.