Privacy Groups Boycott Administration’s Facial Recognition Talks

The Commerce Department will forge ahead, but privacy advocates have lost faith in negotiations over software that can identify faces.

A 3D facial recognition program is demonstrated during the Biometrics 2004 exhibition and conference October 14, 2004 in London.
National Journal
June 15, 2015, 8:05 p.m.

The Obama ad­min­is­tra­tion’s push to re­strict the com­mer­cial use of fa­cial re­cog­ni­tion tech­no­logy suffered a severe set­back Tues­day when pri­vacy groups walked away in protest.

The groups said in a state­ment that they saw no reas­on to con­tin­ue the talks or­gan­ized by the Com­merce De­part­ment be­cause the tech in­dustry re­fused to agree to even mod­est lim­it­a­tions.

Pri­vacy ad­voc­ates worry that com­pan­ies could use fa­cial re­cog­ni­tion tech­no­logy to de­liv­er cus­tom­ized ad­vert­ise­ments or even track people as they move through pub­lic spaces. And while it’s easy to change a pass­word, cred­it card num­ber, or on­line ac­count, it can be im­possible to al­ter dis­tin­guish­ing fa­cial fea­tures.

“At a base min­im­um, people should be able to walk down a pub­lic street without fear that com­pan­ies they’ve nev­er heard of are track­ing their every move­ment — and identi­fy­ing them by name — us­ing fa­cial re­cog­ni­tion tech­no­logy,” the Amer­ic­an Civil Liber­ties Uni­on, the Cen­ter for Demo­cracy and Tech­no­logy, the Con­sumer Fed­er­a­tion of Amer­ica, the Cen­ter for Di­git­al Demo­cracy, and oth­er pri­vacy groups said in the state­ment. “Un­for­tu­nately, we have been un­able to ob­tain agree­ment even with that ba­sic, spe­cif­ic premise.”

The abil­ity of gov­ern­ment agen­cies such as the FBI to scan faces in crowds and protests has raised par­tic­u­lar pri­vacy con­cerns, but the Com­merce De­part­ment’s ef­forts have fo­cused only on the use of the tech­no­logy by private com­pan­ies. Face­book, for ex­ample, already uses fa­cial re­cog­ni­tion soft­ware to tag users in pho­tos.

The col­lapse of the gov­ern­ment-led talks high­lights the dif­fi­culty in craft­ing policies through vol­un­tary ne­go­ti­ations with busi­ness groups in­stead of man­dat­ory laws or reg­u­la­tions. And with con­sumer pri­vacy le­gis­la­tion stalled in Con­gress, it seems un­likely that tech com­pan­ies will face ma­jor new pri­vacy re­stric­tions any­time soon.

“I think we need to fun­da­ment­ally re­think the abil­ity of multi-stake­hold­er pro­cesses to pro­duce good pri­vacy rules,” said Al­varo Bedoya, the ex­ec­ut­ive dir­ect­or of the Cen­ter on Pri­vacy & Tech­no­logy at Geor­getown Uni­versity Law Cen­ter and one of the ad­voc­ates who now is boy­cot­ting the dis­cus­sions. “The Amer­ic­an people need to wake up to what in­dustry lob­by­ing is do­ing to con­sumer pri­vacy in Wash­ing­ton.”

But the Com­merce De­part­ment’s Na­tion­al Tele­com­mu­nic­a­tions and In­form­a­tion Ad­min­is­tra­tion, which is con­ven­ing the talks, isn’t giv­ing up yet. In a state­ment, a spokes­wo­man said the agency is “dis­ap­poin­ted” in the boy­cott, but that that the meet­ings will con­tin­ue with whatever groups want to par­ti­cip­ate.

“Up to this point, the pro­cess has made good pro­gress as many stake­hold­ers, in­clud­ing pri­vacy ad­voc­ates, have made sub­stan­tial, con­struct­ive con­tri­bu­tions to the group’s work,” the NTIA spokes­wo­man said. “The pro­cess is the strongest when all in­ter­ested parties par­ti­cip­ate and are will­ing to en­gage on all is­sues.”

And tech groups are vow­ing to forge ahead with writ­ing a code of con­duct for fa­cial re­cog­ni­tion soft­ware without in­put from the pri­vacy groups. It is in the in­dustry’s own in­terest, they ar­gue, to en­sure that con­sumers trust their products.

“Re­gard­less of who writes the code, I would hope that every­one could agree that it would im­prove con­sumer pri­vacy pro­tec­tions,” said Carl Sz­abo, policy coun­sel for NetChoice, an in­dustry group that rep­res­ents Google, Face­book, Ya­hoo, and oth­er tech com­pan­ies.

In early 2012, the White House un­veiled a “Con­sumer Pri­vacy Bill of Rights” and urged Con­gress to en­act the pro­tec­tions in­to law. With the pro­pos­al fa­cing long odds on Cap­it­ol Hill, Pres­id­ent Obama dir­ec­ted NTIA to be­gin a series of “multi-stake­hold­er” meet­ings between in­dustry groups and con­sumer ad­voc­ates to de­vel­op pri­vacy codes of con­duct.

The codes would be vol­un­tary, but com­pan­ies that agreed to abide by them could brag to con­sumers about their strong pri­vacy pro­tec­tions. Agree­ing to a code and then vi­ol­at­ing it could res­ult in fed­er­al en­force­ment for de­cept­ive ad­vert­ising.

The first area that the agency tackled was pri­vacy on mo­bile apps. In 2013, con­sumer ad­voc­ates and in­dustry as­so­ci­ations worked on a code for how apps should dis­close the kinds of data they are col­lect­ing from users.

For the past year, the groups have been meet­ing to try to craft a code of con­duct for fa­cial re­cog­ni­tion tech­no­logy. But the pri­vacy ad­voc­ates be­came frus­trated that the tech in­dustry re­fused to agree that com­pan­ies should have to ask per­mis­sion in some cases to scan people’s faces. Un­ne­ces­sary re­stric­tions could squelch prom­ising new in­nov­a­tions that would ul­ti­mately be good for con­sumers, the in­dustry lob­by­ists said.

Bedoya ar­gued that a weak code of con­duct would be worse than none at all be­cause Texas and Illinois already have en­acted strong bio­met­ric pri­vacy rules. While Con­gress is un­likely to do much on the is­sue, he ar­gued that pri­vacy ad­voc­ates should fo­cus on passing more state laws to lim­it the use of fa­cial re­cog­ni­tion tech­no­logy.

Sz­abo said he is dis­ap­poin­ted that the pri­vacy groups are boy­cot­ting the NTIA pro­cess and ar­gued that there was still plenty of room for agree­ment. They could have worked on trans­par­ency meas­ures or ways to give users more con­trol over how com­pan­ies can use their fa­cial im­ages, he said.

“Con­sensus doesn’t mean that every­one al­ways gets everything they want,” he said. “But it means we find enough things on which we agree that we can pro­duce something be­ne­fi­cial.”

But the pri­vacy ad­voc­ates say they won’t think much of whatever code the in­dustry groups pro­duce on their own.

“You can’t call it a multi-stake­hold­er pro­cess if you only have in­dustry stake­hold­ers,” Bedoya said.

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