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Looking at Facial Recognition Software Through A Wide-Angle Lens | Vanderbilt Journal of Entertainment & Technology Law

Amazon’s facial recognition technology, called Amazon Rekognitition, is a growing part of that tech giant’s portfolio. Unlike Amazon Prime or Whole Foods, however, it remains largely removed from public awareness. That may change dramatically in the coming months if Amazon CEO Jeff Bezos has his way.

At a recent Alexa conclave in Seattle, Bezos stated that Amazon’s public policy team is working on facial recognition regulations. “It’s a perfect example of something that has really positive uses, so you don’t want to put the brakes on it. But, at the same time, there’s also potential for abuses of that kind of technology, so you want regulations.”

Amazon has been marketing the Rekognition software to companies and law enforcement agencies rather than to general consumers. Its customers are provided with the capability to match, in real time, photos and videos of people’s faces with other facial images. For example, this may aid police and others in combatting crime more quickly. But since the technology is not perfect, it may also create false positives that lead to misidentifications and the creation of new rabbit holes for criminal investigations.

And there are those who will be creeped out by this new form of digital surveillance, especially with its ability to be misused. Bezos recognizes this; his call for federal regulation makes business as well as public policy sense since having clearer regulatory guardrails installed as the technology develops will help create greater confidence among current and potential customers. Currently, they may face financial liability for intentional or negligent misuse of the software, and at the least, a public relations nightmare, such as when a rogue employee uses it for nefarious purposes.

Amazon has announced that it will be drafting proposed legislation for Congress to consider. This will provide a basis for other stakeholders to react and join in the legislative discussion. But that initiative, like facial recognition software, also has potentially negative implications.

First, only addressing this application would be far too narrow an approach. Facial recognition software is part of a larger technological universe—biometric information—that can be gathered through other techniques, including digital fingerprints and eye scans. Consequently, any proposed legislation should encompass a full range of activities involved in capturing, storing, and sharing biometric information. Notice and written consent provisions are also essential to ensure that there is full transparency to those who are providing this information, whether voluntarily or involuntarily.

Federal legislation also should not preempt the ability of individual municipalities from prohibiting the use of biometric information matching software by their government agencies. This decision is highly localized and should not be impeded by a one-size-fits-all approach that removes decisional powers from cities and towns. To date, both San Francisco and Oakland, California have enacted such a ban, and others should not be legally prohibited from doing the same.

Exemptions regarding who is covered by biometric information regulations should also be limited. Any legislation should not contain provisions that undermine requirements for subject consent, secure storage, and timely destruction of biometric identifiers. For example, private companies should not escape legal liability if they assert that the biometric information will be used exclusively for employment, human resources, fraud prevention, or security purposes. They also should be covered even if they do not sell, lease, trade, or profit from the biometric information. They should be held to a higher standard than merely protecting biometric information in the same way that other sensitive information is handled internally.

These more expansive principles deserve timely discussion and buy-in from Amazon and others who are offering biometric information matching systems. Alexa was listening closely to Jeff Bezos’s Seattle speech, but so too should all those with a stake in having this new technological frontier develop with appropriate safeguards. The necessary focus should be wide-angled at the outset to consider all those affected by biometric screening.

Stuart N. Brotman*

*Stuart N. Brotman is a Fellow at the Woodrow Wilson International Center for Scholars in Washington, DC. He is based in its Science and Technology Innovation Program, focusing on digital privacy policy issues.

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