Corporate Accountability: Leveraging Facial Recognition Technology Responsibly

Charles Lew is the owner of The Lew Firm, & LA Small Business Commissioner. Charles writes & speaks on the confluence of AI and the Law.

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The facial recognition market, estimated at roughly $5 billion in 2022, is projected to grow to $19.3 billion by 2032. Facial recognition technology’s unprecedented growth and utilization is not without profound ethical concerns.

You’ve probably stood at a self-checkout register while live surveillance footage of you is displayed on a monitor just inches away. For many consumers, this feels invasive, and intuitively, it’s overbearing, but many of us are largely “used to it” after years of conditioning. And some consumers have inadvertently agreed to the monitoring of themselves even in the sanctity of their own backyards, recording and storing their comings and goings with no end in sight.

Still, facial recognition is widely viewed as either a convenient alternative to passwords, or a security superpower that is taking a bite out of crimes such as kidnapping, homicide and human trafficking.

When it comes to this issue, businesses can build trust with their customers and stakeholders by prioritizing transparency, consent and fairness, fostering a sense of community, stronger relationships and loyalty.

I suggest companies embrace a comprehensive and robust disclosure policy, ensuring clear communication about using facial recognition in stores or online platforms. Adopting a policy that demonstrates respect for customers empowers individuals to control their information, enhancing their sense of agency and trust in the business. And addressing biases in facial recognition algorithms promotes fairness and inclusivity, leading to better customer perception.

The Legal Landscape

Overextending the use of facial recognition technology isn’t merely a hypothetical specter but a present and unfolding reality. Yet only a handful of states have taken steps to adopt legislation aimed at limiting the potential misuse of facial recognition technology.

Some jurisdictions, such as San Francisco, have outright banned the use of facial recognition by local government agencies. Other states like Colorado and Utah have implemented laws requiring informed consent and transparency in their collection and use.

Given the widespread use of facial recognition in our daily lives, it is arguable that we are already too deeply entrenched in this technology to reverse course, but without concerted efforts to mitigate its misuse, the risk of profiling, comprehensive data recording and manipulation could grow. Facial data is already scattered across various platforms and devices, archived in thousands of databases. However, there are still compelling reasons to believe that intervention is not only necessary but also feasible.

Informed Consent Versus Coerced Consent

Many of these consents have been given without a full understanding of the implications. The lengthy terms and conditions presented to users often bury critical information about data collection and usage. This lack of transparency can be seen as a form of coerced consent rather than informed consent. There is an opportunity to provide clearer, more transparent consent processes.

To enhance transparency and obtain informed consent for facial recognition, businesses should clearly state their purpose, offer easy opt-in/opt-out options, explain the specifics of the data usage, provide educational resources and adequately display consent notices to ensure data protection and privacy. Over-disclosure of facial recognition policy is imperative to maintain customer confidence and ensure continued awareness and understanding of policy changes.

Corporate Accountability

Companies are increasingly under scrutiny for their data handling practices. High-profile incidents have led to public outrage, resulting in companies revisiting their policies and practices. For example, in January 2023, a group of lawmakers in New York City protested outside Madison Square Garden after learning that they were using facial recognition technology to kick out any attorneys whose law firms had active litigation with the arena.

Company leaders can practice corporate accountability with facial recognition technology by prioritizing user rights and privacy. Best practices include:

• Identifying, monitoring and recording impact assessments to delineate and mitigate risks.

• Ensuring that customers and users expressly grant informed consent.

• Focusing on the implementation of robust data protection measures.

• Continuously monitoring and regularly auditing systems for compliance.

Transparent communication about the technology’s purpose and limitations is essential. Additionally, companies should avoid deploying facial recognition in sensitive areas without explicit consent, using data for unintended or nefarious purposes or perpetuating algorithm biases. By adhering to ethical guidelines, respecting user rights and proactively addressing concerns, businesses can mitigate the potential misuse of this potent technology and ensure responsible use of facial recognition technology while fostering customer trust and loyalty.

Companies must be vigilant stewards of their data. They must prioritize open communication and dialogue with policymakers and other technology companies. The implementation of responsible regulations to protect our rights is a long and arduous road, but the consequences of complacency in the face of these challenges are dire. The essence of what makes individuals unique must not become commodities traded to the highest bidder.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.


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