Regulating Facial Recognition Technology

(Research Summary by Katherine Furl) 

How are Americans legally protected from facial recognition technology? And do these protections align with First Amendment protections, particularly Americans’ right to free speech? In “Regulating Facial Technologies”, Evan Ringel and Amanda Reid analyze the patchwork of regulatory approaches toward facial recognition technology (FRT) in the United States to determine how much FRT protections map onto protections under the First Amendment. 

FRT’s use as an identification tool poses several ethical and legal dilemmas. “One-to-many” facial matching in FRT requires access to large, preexisting databases of facial images and the collection of biometric information, identifiers related to a person’s physical characteristics. Large FRT databases and biometric data collection raise concerns around data security: inaccurate or biased use of FRT disproportionately harms marginalized communities more likely to face surveillance by law enforcement and other regulatory agencies. FRT can also be used not just by law enforcement or other government agencies, but also by private corporations or even individual citizens, raising additional concerns related to information protection and privacy.  

Despite these controversies, Ringel and Reid note that “there is no comprehensive federal law regulating use” of FRT, and “few states have passed laws explicitly focused towards facial recognition technology.” Instead, Americans’ legal protections related to FRT are scattered throughout a patchwork of state legislations and local ordinances. Ringel and Reid dive into these patchwork regulations to see how they connect to protections under the First Amendment, particularly looking to see if Americans’ information used in FRT can be considered protected speech.  

Though Ringel and Reid find “significant judicial support at the lower court level for a broad interpretation of information as speech”—interpretations that would likely protect Americans’ information from nonconsensual use in FRT under the First Amendment—other aspects of these regulations complicate matters. For one, several regulations referred to terms like “facial recognition” or “biometric data” without providing proper definitions, making enforcement of protections through these regulations difficult. Additionally, Ringel and Reid find two differing approaches in these ordinances, each with different implications and potential support from lawmakers and the broader public:  

1. Broad bans or moratoriums, which would regulate use of Americans’ information in FRT across the board. While Ringel and Reid note this approach might be “constitutionally permissible,“ they also assert it “may not be politically attractive” given considerable public’s support for FRT’s use among law enforcement. 
2. Case-by-case evaluations of acceptable use, while allowing for individual determinations of when FRT can be employed, introduce their own potential issues. As Ringel and Reid point out, “government agencies and private actors have little incentive to comply with procedural requirements,” so “it is unclear whether procedural requirements like a use policy or notice requirement provide a sufficient barrier against more intrusive uses of facial recognition technology.”

Ultimately, Ringel and Reid argue Americans’ information could theoretically be protected under the First Amendment, and several court cases and state and local regulations support such protections. Even so, these protections lack robust federal support with clear definitions—and as long as that remains the case, Americans’ protections related to FRT remain uncertain and temporary.