In an effort to stay ahead of the technology curve, the Federal
Trade Commission (the "FTC") recently issued a staff
report on advertisers'' use of facial recognition technology
("FRT").
As the FTC explains, FRT can take a number of different forms,
from merely recognizing that there is a face in a photo, to
uncovering age, gender and other similar general characteristics
from a photo, all the way to actually putting names to faces, a la
the Sci-Fi movie, "Minority Report." FRT may be employed
in social media contexts (e.g., tagging photos of friends), digital
billboards (e.g., serving targeted ads) or privacy protection
mechanisms (e.g., authenticating permitted users).
The FTC interest in FRT is focused on protecting consumer privacy,
while promoting innovation. Namely, the Report reminds advertisers
to:
- Focus on "privacy by design," taking into account the sensitive nature of information collected via FRT, how it will be stored, how it will be safeguarded, and how it will be disposed;
- Be transparent about FRT practices, and provide consumers with appropriate notice;
- Obtain affirmative express consent before collecting any data when (a) using data in a materially different manner than originally contemplated; and (b) generally, allowing identification of previously anonymous individuals.
The Report offers some concrete recommendations. Where a
store''s digital sign identifies even just a
consumer''s age or gender for targeted ads, advertisers
should provide "walk-away" notice, literally advising
consumers to turn around before entering the scanned section of the
store, or the store as a whole. Social media providers should not
collect or store any biometric data of non-users of their service,
because there would be no way to offer practical choice to
non-users. The FTC also noted that a (yet to be designed) mobile
app allowing consumers to put a name to any and all scanned faces
in range of the phone would raise significant privacy
concerns.
FRT has clearly been an FTC focus, as the Report follows up on a
December 2011 FTC workshop, as well as the testimony of an FTC
Associate Director before the Senate Judiciary Committee on the
topic. In one respect, the Report is merely an extension of the
principals set forth in the FTC''s March 2012 report,
"Protecting Consumer Privacy in an Era of Rapid Change."
Nonetheless, FRT has provided the FTC with another arena in which
to emphasize its focus on privacy even, as one dissenting FTC
Commissioner lamented, when many of the potential uses are merely
theoretical at this point.
In terms of enforceability, the Report merely provides guidance to
those acting in the field, and is not intended to trump existing
legal requirements, or serve as a template for law enforcement
actions
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
