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The V&E Report
Insights in Government Enforcement and Investigations

Amazon Pitches Facial “Rekognition” Law to Feds

On Wednesday, September 25, at a surprise appearance after a product event in Seattle, Amazon CEO Jeff Bezos revealed that the company’s public policy team is drafting proposed regulations for facial recognition technology, with plans to share them with the federal government. The move comes several months after Amazon publicly proposed ethical guidelines around the use of facial recognition technology, in an effort to nudge national legislative efforts on the topic. Notably, the current regulatory framework provides sparse guidance on how companies should employ this new and controversial technology and there has been little movement in Congress to move forward with legislation. The drafting of a proposed regulatory framework is motivated, explained Bezos, by the desire to strike a balance between allowing the positive potential uses of the burgeoning, powerful technology while avoiding abuses — “there’s lots of potential abuses with that kind of technology . . . you do want regulations.”

Though some municipalities have already begun regulating the use of facial recognition technologies (including Bay Area municipalities like San Francisco, as described by V&E in a previous blog post), so far the federal government, and most states, have been slow to act. For example, though the U.S. Senate proposed a bill in March that would require companies to gain the consent of users before processing facial recognition data or sharing it with third parties, the legislation has since stalled. That bill was backed by tech giant Microsoft.

In this regulatory void, businesses seeking to implement facial recognition technology in new and creative ways face uncertainty as to whether their use of the technology could expose them to legal or public relations challenges. Amazon’s proactive approach to regulating facial recognition technology, if adopted by Congress, could result in the company exerting significant influence over an emerging landscape of policies that will regulate the sale and use of facial recognition technologies, including its own “Rekognition.”

A New Technology, An Evolving Legal Landscape

Facial recognition employs technology in which “[f]aces are matched based on their visual geometry, including the relationship between the eyes, nose, brow, mouth, and other facial features.” This capability already offers a host of positive uses in a variety of sectors, such as identity verification for iPhone users, fraud prevention in the financial services sector, and aid to law enforcement officials in the fight against human trafficking. In fact, facial recognition technology has already become mainstream for some users, many of whom might not even know it. For example, facial recognition applications are in use in college classrooms to take attendance, places of worship to track regulars and new parishioners, and brick and mortar retailers to identify possible shoplifters.

The innovation is not, however, without controversy. At home and abroad, facial recognition technology is the subject of protest by privacy advocates and advocates for civil rights and liberties more broadly. Much attention has been paid to China’s use of the technology, which is so widespread that it is even used to display the faces of pedestrians who jay-walk on large street-level surveillance screens to publicly shame them for their behavior. Recently, protesters in Hong Kong gained attention for knocking down facial recognition towers put in place by the Chinese government. And in response to the ongoing protests, the Hong Kong Chief Executive banned face masks in a bid to prevent protesters from circumventing the government’s facial recognition efforts. Domestically, police departments and companies alike have faced criticism for employing the technology in a law enforcement context. In May 2018, for example, a coalition of groups that included the American Civil Liberties Union, the Electronic Freedom Foundation, and Human Rights Watch wrote an open letter to Bezos asking Amazon to “take Rekognition off the table for governments,” citing civil rights and civil liberties concerns. Certain public figures have also cautioned against the use of facial recognition technologies, arguing that they are susceptible to racial bias.

Amazon’s proposed regulations could be seen as a response to such criticism, and indeed, this is not the company’s first foray into policy making for facial recognition technology. In February of this year, Amazon released a public blog post on its “AWS Machine Learning Blog” entitled “Some Thoughts on Facial Recognition Legislation,” in which the tech giant proposed ethical guidelines for consideration and called for national legislation on the topic. The suggested guidelines include the need for transparency and a “99% confidence score threshold” when facial recognition is used by law enforcement, as well as notice when facial recommended technology is deployed in a public setting.

What This Means for You

Amazon’s foray into the policy arena is significant for individuals and businesses alike, regardless of whether its recommendations are implemented.

First, these developments make clear that facial recognition technology is here to stay. As Forbes reported, the global market for facial recognition technology is set to surpass an $8 billion valuation by 2022. Companies that are early entrants into this space face both great opportunity and great uncertainty in this uncharted territory.

Second, now that facial recognition technology is an unavoidable reality, companies will need to wrestle with whether and how they will implement the technology in their own business. For example, companies might consider whether facial recognition technology would be valuable for tracking employees’ whereabouts, or their start and end times at work. For companies that do implement some kind of facial recognition technology, they will need to consider what rules and boundaries they will implement for themselves in the currently sparse regulatory environment. Being proactive in drafting forward-thinking proposals, and making them public, might help companies avoid bad publicity, or worse, legal challenges, to policies deemed invasive or unreasonable.

Third, any company considering using facial recognition technology — whether a developer/seller or a consumer of the technology — will need to be proactive in monitoring the development of legal and regulatory frameworks impacting their use of this technology. Though most state governments and the federal government do not yet regulate the domain of facial recognition technology, some states and municipalities are beginning to police the issue. As an example, the Illinois Supreme Court held in January 2019 that companies who collect face prints without informed consent can be sued for violations of Illinois’ Biometric Information Privacy Act. As facial recognition technology becomes more and more ubiquitous, suits like this could become more commonplace. And until and unless the federal government enacts legislation preempting state or local regulations, companies will need to contend with an emerging patchwork of laws and jurisprudence that could vary greatly from jurisdiction to jurisdiction.

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Authors

Jessica S. Heim

Jessica S. Heim Partner

Jessica R. Spradling

Jessica Spradling Kelman Senior Associate

Michael C. Hoosier

Michael C. Hoosier Associate

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