(Part of the biometric product marketing expert series)
For purposes of this post, I will define three entities that can employ facial recognition:
- Public organizations such as governments.
- Private organizations such as businesses.
- Individuals.
Some people are very concerned about facial recognition use by the first two categories of entities.
But what about the third category, individuals?
Can individuals assert a Constitutional right to use facial recognition in their own homes? And what if said individuals live in Peoria?
Concerns about ANY use of facial recognition
Let’s start with an ACLU article from 2018 regarding “Amazon’s Disturbing Plan to Add Face Surveillance to Your Front Door.”
Let me go out on a limb and guess that the ACLU opposes the practice.
The article was prompted by an Amazon 2018 patent application which involved both its Rekognition facial recognition service and its Ring cameras.
While the main thrust of the ACLU article concerns acquisition of front door face surveillance (and other biometric) information by the government, it also briefly addresses the entity that is initially performing the face surveillance: namely, the individual.
Likewise, homeowners can also add photos of “suspicious” people into the system and then the doorbell’s facial recognition program will scan anyone passing their home.
I should note in passing that ACLU author Jacob Snow is describing a “deny list,” which flags people who should NOT be granted access such as that pesky solar power salesperson. In most cases, consumer products tout the use of an “allow list,” which flags people who SHOULD be granted access such as family members.
Regardless of whether you’re discussing a deny list or an allow list, the thrust of the ACLU article isn’t that governments shouldn’t use facial recognition. The thrust of the article is that facial recognition shouldn’t be used at all.
The ACLU and other civil rights groups have repeatedly warned that face surveillance poses an unprecedented threat to civil liberties and civil rights that must be stopped before it becomes widespread.
Again, not face surveillance by governments, but face surveillance period. People should not have the, um, “civil liberties” to use the technology.
But how does the tech world approach this?
The reason that I cited that particular ACLU article was that it was subsequently referenced in a CNET article from May 2021. This article bore the title “The best facial recognition security cameras of 2021.”
Let me go out on a limb and guess that CNET supports the practice.
The last part of author Megan Wollerton’s article delves into some of the issues regarding facial recognition use, including those raised by the ACLU. But the bulk of the article talks about really cool tech.
As I stated above, Wollerton notes that the intended use case for home facial recognition security systems involves the creation of an “allow list”:
Some home security cameras have facial recognition, an advanced option that lets you make a database of people who visit your house regularly. Then, when the camera sees a face, it determines whether or not it belongs to someone in your list of known faces. If the recognition system does not know who is at the door, it can alert you to an unknown person on your property.
Obviously you could repurpose such a system for anything you want, provided that you can obtain a clear picture of the face of the pesky social power salesperson.
Before posting her reviews of various security systems, and after a brief mention (expanded later in the article) about possible governmental misuse of facial recognition, Wollerton redirects the conversation.
But let’s step back a bit to the consumer realm. Your home is your castle, and the option of having surveillance cameras with facial recognition software is still compelling for those who want to be on the cutting edge of smart home innovation.
“Your home is your castle” may be a distinctly American concept, but it certainly applies here as organizations such as, um, the ACLU defend a person’s right against unreasonable actions by governments.
Obviously, there are limits to ANY Constitutional right. I cannot exercise my Fourth Amendment right to be secure in my house, couple that with my First Amendment right to freely exercise my religion, and conclude that I have the unrestricted right to perform ritual child sacrifices in my home. (Although I guess if I have a home theater and only my family members are present, I can probably yell “Fire!” all I want.)
So perhaps I could mount an argument that I can use facial recognition at my house any time I want, if the government agrees that this right is “reasonable.”
But it turns out that other people are involved.
You knew I was going to mention Illinois in this post
OK, it’s BIPA time.
As I previously explained in a January 2021 post about the Kami Doorbell Camera, “BIPA” is Illinois’ Biometric Information Privacy Act. This act imposes constraints on a private entity’s use of biometrics. (Governments are excluded in Illinois BIPA.) And here’s how BIPA defines the term “private entity”:
“Private entity” means any individual, partnership, corporation, limited liability company, association, or other group, however organized. A private entity does not include a State or local government agency. A private entity does not include any court of Illinois, a clerk of the court, or a judge or justice thereof.
Did you see the term “individual” in that definition?
So BIPA not only affects company use of biometrics, such as use of biometrics by Google or by a theme park or by a fitness center. It also affects an individual such as Harry or Harriet Homeowner’s use of biometrics.
As I previously noted, Google does not sell its Nest Cam “familiar face alert” feature in Illinois. But I guess it’s possible (via location spoofing if necessary) for someone to buy Nest Cam familiar face alerts in Indiana, and then sneak the feature across the border and implement it in the Land of Lincoln. But while this may (or may not) get Google off the hook, the individual is in a heap of trouble (should a trial lawyer decide to sue the individual).
Let’s face it. The average user of Nest Cam’s familiar face alerts, or the Kami Doorbell Camera, or any other home security camera with facial recognition (note that Amazon currently is not using facial recognition in its consumer products), is probably NOT complying with BIPA.
A private entity in possession of biometric identifiers or biometric information must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual’s last interaction with the private entity, whichever occurs first.
I mean it’s hard enough for Harry and Harriet to get their teenage son to acknowledge receipt of the Homeowner family’s written policy for the use of the family doorbell camera. And you can forget about getting the pesky solar power salesperson to acknowledge receipt.
So from a legal perspective, it appears that any individual homeowner who installs a facial recognition security system can be hauled into civil court under BIPA.
But will these court cases be filed from a practical perspective?
Probably not.
When a social media company violates BIPA, the violation conceivably affects millions of individuals and can result in millions or billions of dollars in civil damages.
When the pesky solar power salesperson discovers that Harry and Harriet Homeowner, the damages would be limited to $1,000 or $5,000 plus relevant legal fees.
It’s not worth pursuing, any more than it’s worth pursuing the Illinois driver who is speeding down the expressway at 66 miles per hour.
Bredemarket 