TechFreedom filed the following comments (PDF) in the FTC's inquiry about the privacy implications of facial recognition technology.
The Federal Trade Commission plays a vital role in
punishing unfair and deceptive trade practices. Fulfilling its statutory
duty to protect consumers requires, of course, carefully monitoring the
development of new technologies that, like facial recognition, directly affect
consumers. Thus, inquiries such as this one—and related workshops—deserve
praise, encouragement and the greatest possible degree of input from all
stakeholders.
And yet, with the best of intentions, the Commission is treading
on dangerous constitutional ground. Proposals to restrict the use of
facial recognition technology—even through opt-out mandates—implicate difficult
First Amendment questions: When may government restrict our right to
observe the world around us, such the faces we see on the street, and to reduce
those observations to mathematical terms? May an individual bar others
from using the unique mathematical description of his or her face? In
other words, do we have a property right in our visage? If so, what other personal information—or raw
facts—may be property-tized?
The Center for Democracy & Technology touches—thoughtfully
but incompletely, on some of these questions, citing the Supreme Court's 1973
decision in U.S. v. Dionisio: “No person can have a reasonable
expectation that others will not know the sound of his voice, any more than he
can reasonably expect that his face will be a mystery to the world.”[1]
CDT may indeed, be correct that even information available to the naked
senses should be protected against systematized—and potentially persistent and
ubiquitous—observation through increasingly sophisticated technological
measures. But this is a Fourth Amendment question—about when
observation of information constitutes a "search" for which probable
cause (or some lower standard of proof) may be required.
We agree with the argument made by the Cato Institute in
their amicus brief in the recently decided Jones case: The
Supreme Court has fundamentally misinterpreted its 1967 Katz decision; rather
than hinging on "reasonable expectations" (a term used in Justice
Harlan's solo concurrence) it actually hinges on accessibility, much as CDT
argues here. Justice Stewart's majority opinion, joined by six justices,
used a different standard:
What a person knowingly exposes to the public, even in his own home
or office, is not a subject of Fourth Amendment protection. But what he seeks
to preserve as private, even in an area accessible to the public, may be
constitutionally protected.
Getting this standard right could go a long way to
ensuring that the Courts protect Americans from the abuse of facial recognition
tracking. While it is understandable that the FTC has ruled this problem
out of bounds for this inquiry, given its limited authority, doing so has
resulted in the perverse result that the most dangerous use of a technology is
discussed as a problem to be addressed only indirectly, by limiting the use of
facial recognition by private actors.
Herein lies the danger of this inquiry: Creating property
rights in our likeness risks becoming a right to keep people from looking
at—and talking about—us, with all the perils for the protection of free
expression more generally. This is precisely the problem First Amendment
scholar and UCLA Law Professor Eugene Volokh warned about in his seminal 2000
law review article, "Freedom of Speech, Information Privacy, and the
Troubling Implications of a Right to Stop People from Speaking About You,”[2]
which I submit herewith as an essential part of the record in this inquiry.
As Volokh opens his piece:
Privacy is a popular word, and government attempts to “protect our
privacy” are easy to endorse. Government attempts to let us “control . . .
information about ourselves” sound equally good: Who wouldn’t want extra
control, especially of things that are by hypothesis personal? And what
fair-minded person could oppose requirements of “fair information practices”?
The difficulty is that the right to information
privacy—the right to control other people’s communication of personally
identifiable information about you—is a right to have the government stop
people from speaking about you. We already have a code of “fair information
practices,” and it is the First Amendment, which generally bars the government
from “control[ling the communication] of information” (either by direct
regulation or through the authorization of private lawsuits), whether the
communication is “fair” or not. While privacy protection secured by contract
turns out to be constitutionally sound, broader information privacy rules are
not easily defensible under existing free speech law.
Among Volokh's central concerns is the suppression of
facts. As the Supreme Court recently put it in its Sorrell
decision: “Facts, after all, are the beginning point for much of the speech
that is most essential to advance human knowledge and to conduct human
affairs.”[3]
Volokh explains how imposition of at least some of the Fair Information
Practice Principles in general can result in the suppression of truthful speech—and
what this would mean for the rest of First Amendment doctrine. In
particular, he notes that the purported "right of publicity" (on
which many arguments for restrict facial rest) has never been recognized by the
Supreme Court—and argues that, if it were ever recognized, it would be narrowly
limited.[4]
This is not an argument that the government should do
nothing. The First Amendment neither protects fraud (such as violation of
the kind of self-regulatory program for facial recognition advanced by CDT) nor
precludes the government from mandating truthful disclosures about corporate
privacy practices (such as when, where, and how they use facial recognition).
Restrictions on demonstrably harmful uses of data are, in general,
likely to raise fewer First Amendment problems than restrictions on
observation, analysis and distribution (provided they are content and viewpoint
neutral).
For now, this is simply an
argument that the FTC should tread carefully—and focus on using its existing
authority effectively to protect consumers. More than anything else, that
means giving Prof. Volokh's excellent essay the attention it deserves—and
remembering that if the Fourth Amendment does not adequately protect us from
government snooping into our private affairs, the inevitable result will be
intrusions on free speech protected by the First Amendment.
[3]
Sorrell v. IMS Health, 564 U.S. ___ ,
15 (2011).
[4]
52 Stan. Law. Rev. 1049 at 17.
