Hidden Within New Govt. Facial Recognition Guidelines, The Dreaded ‘Opt-In’ Rule

The federal government has released new guidelines on facial recognition technologies and discretely tucked in a Trojan horse that is destined to have fierce opposition: a rule that advertisers and social networks must get permission before repurposing facial data for future use. Facebook has long argued that “opt-in” rules would stifle innovation in a culture with unpredictable tolerance for new uses of personal data, such as the newsfeed, which users initially opposed and has since become a staple of social networking. The Federal Trade Commission worries that Facial data can be automatically be collected in en masse and repurposed for intrusive advertising, when technologies such as interactive billboards become more common.

Indeed, third-party developers are already starting to engineer creative Face-sensitive products, such as Facedeals, a camera that automatically “checks-in” users as they walk into a restaurant.

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In recognition of the growing use of Facial data, the report laid out scenarios. For example, the FTC notes, businesses that allow users to virtually “try on” clothes should delete body and facial data once the user closes his account and should not sell the information to other advertisers to use in ways materially different than the original shopping experience.

The FTC further conjures up scenarios where social networks can be abused:

“Consider the example of a mobile app that allows users to identify strangers in public places, such as on the street or in a bar. If such an app were to exist, a stranger could surreptitiously use the camera on his mobile phone to take a photo of an individual who is walking to work or meeting a friend for a drink and learn that individual’s identity – and possibly more information, such as her address – without the individual even being aware that her photo was taken.”

For all these (potentially) frightening reasons, “social networks should obtain a consumer’s affirmative express consent before using a consumer’s image or any biometric data derived from that image in a materially different manner than it represented when it collected the data,” explains the report [emphasis added].

In refuting previous FTC guidelines, Facebook has warned that innovation requires repurposing personal data, especially when they have developed a trusted relationship with the user. “Where a user has an existing relationship with a business and the change will benefit the user through new or innovative service offerings, opt-in consent should not be required,” Facebook wrote.

The report has its critics. In dissent, Commissioner J . Thomas Rosch wrote, “I disagree with the adoption of ‘best practices’ on the ground that facial recognition may be misused. There is nothing to establish that this misconduct has occurred or even that it is likely to occur in the near future.”

While the report is specific to facial recognition, it’s strong wording on “express consent” could have far-reaching implications depending on it’s interpretation.