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The Future of Facial Recognition Is Not Fully Known: Developing Privacy and Security Regulatory Mechanisms for Facial Recognition in the Retail Sector
Elias Wright*
Note

The full text of this Note may be found here.

29 Fordham Intell. Prop. Media &Ent. L.J. 611 (2019).

Note by Elias Wright

 

ABSTRACT

[I]

n recent years, advances in facial recognition technology have resulted in a rapid expansion in the prevalence of private sector biometric technologies. Facial recognition, while providing new potentials for safety and security and personalized marketing by retailers implicates complicated questions about the nature of consumer privacy and surveillance where a “collection imperative” incentivize corporate actors to accumulate increasingly massive reservoirs of consumer data. However, the law has not yet fully developed to address the unique risks to consumers through the use of this technology. This Note examines existing regulatory mechanisms, finding that consumer sensitivities and the opaque nature of the technology have resulted in over- and underinclusive regulatory regimes.

This Note proposes that the broad implications of biometric privacy harms justify more extensive privacy regulation than a narrow focus on data security and self-regulation. It suggests that regulation predicated on consumer data self-management is inefficient in controlling the flow of information generated by facial recognition.

This Note finds that a regulatory approach based in collaborative governance may be better suited for regulating complex systems that create hard-to-calculate risks, change too quickly for traditional regulatory approaches, and involve technical and industry expertise that regulators and legislators are unlikely to have.

*J.D. Candidate, Fordham University School of Law, 2020; B.A., Religion & Art History, Oberlin College, 2014. I would like to thank Olivier Sylvain, my advisor, for his guidance and feedback throughout the writing process. Additionally, I am greatly appreciative of N. Cameron Russell, Danielle Keats Citron, and all of the scholars who visited and contributed to the Civil Rights and Civil Liberties in the Digital Age seminar, as well as Sean Corrado and the editors and staff of the IPLJ for their advice and feedback. I would like to extend a special thank you to my family and friends for patiently suffering my incessant and rambling reveries.