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February 17, 2023

Slow Development of Legal Principles and Reliability Concerns Affect Growing Use of Facial-Recognition Technology

By: Brian Miller

The rapid development of facial-recognition technology has outpaced the development of governing legal principles, an expert panel reported at the 2022 Appellate Judges Education Institute Summit in Scottsdale, Arizona.

This advancing technology is both pervasive and popular. Clare Garvie, a professor at Georgetown Law, told audience members that facial-recognition company Clearview AI has collected 30 billion images of individuals. Garvie explained that everyone can safely assume that Clearview AI has their face in its database. Law enforcement has embraced the technology, she added, with at least one-fourth of U.S. law-enforcement agencies using it. Casinos and entertainment events have also used the technology to identify individuals previously identified as security risks, Garvie reported.

Garvie and her co-panelist, Indiana University professor Fred Cate, discussed various public-policy judgments that our legislatures and courts must address. Cate said that we should be concerned about our loss of “practical obscurity” – that is, the “ability to go somewhere else and not be recognized.” He noted that we have, in other areas, refused to use technology to its fullest extent. For example, he noted, we don’t have our cars trigger speeding tickets when we drive too fast, and we haven’t embraced using time-check cameras on roadways to identify speeding drivers.

While facial recognition is a “tool” that “alone is not good or bad,” Garvie said, “we need to be sophisticated to say that we can use it one way but not another.” She raised the question whether we should treat passive facial-recognition technology in a similar way to what an officer personally observes.

Cate observed that technology tends to move 10 to 20 years ahead of the law and that law enforcement often uses that uncertainty until courts and legislatures address the issues.

Adding that reliability is a problem, Garvie cited a lack of training and expert certification, compounded by a use of photographs that are often out of date or taken at different angles. Cate agreed, relaying his recent experience re-entering the country, when the facial-recognition technology required him to remove his hat and glasses.

The panelists also discussed how private companies are using the technology. Customized ads are one potential benefit, they explained, with Cate mentioning an airline’s use of the technology for personalized messages in an airport concourse that only an intended passenger would see.

Although one company claims that it can detect a propensity to commit crimes using the technology, Garvie discussed how scientific support for the claim is lacking. She also noted that cultural differences may also affect the technology’s reliability. She drew an analogy to a voice-recognition system that disproportionately identified Black female students as likely to fight in school.

Cate explained that private companies’ aggregation and sharing of data raises additional privacy concerns. Enormous amounts of personal data are available at a low cost, he explained.

Fortunately, Cate noted, private companies in the United States have generally shown restraint in their use of facial-recognition technology and other personal data. But repressive regimes are different, he added, with China using facial recognition to collect behavioral information and to disqualify individuals from jobs based on that information.

Panelists Garvie and Cate each have substantial experience beyond their roles as law-school professors. Garvie is a senior associate with the Center on Privacy & Technology at Georgetown Law. She was the lead author on three of the Center’s reports on facial recognition, and she has served as an expert resource on the topic for Congresspersons and state legislators. Cate is the Vice President for Research at Indiana University and a Senior Fellow of Indiana Law’s Center for Applied Cybersecurity Research. He is a founding editor of the Oxford University Press journal International Data Privacy Law. Cate has also advised several government organizations, including serving as counsel to the Department of Defense’s Technology and Privacy Advisory Committee.

The Honorable Buck James, a justice of the South Carolina Supreme Court, adeptly moderated the panel discussion. Justice James is also a member of the Appellate Judges Education Institute’s Board of Directors.

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Brian Miller

Royston Rayzor Vickery & Williams L.L.P.

Brian Miller is a partner at the Corpus Christi office of Royston Rayzor Vickery & Williams L.L.P. He is a former Chair of the ABA Council of Appellate Lawyers and is board-certified in civil appellate law by the Texas Board of Legal Specialization.