In an effort to stay ahead of the technology curve, the Federal Trade Commission (the “FTC”) recently issued a staff report on advertisers’ use of facial recognition technology (“FRT”). As the FTC explains, FRT can take a number of different forms, from merely recognizing that there is a face in a photo, to uncovering age, gender and other similar general characteristics from a photo, all the way to actually putting names to faces, a la the Sci-Fi movie, “Minority Report.” FRT may be employed in social media contexts (e.g., tagging photos of friends), digital billboards (e.g., serving targeted ads) or privacy protection mechanisms (e.g., authenticating permitted users).
The FTC interest in FRT is focused on protecting consumer privacy, while promoting innovation. Namely, the Report reminds advertisers to:
- Focus on “privacy by design,” taking into account the sensitive nature of information collected via FRT, how it will be stored, how it will be safeguarded, and how it will be disposed;
- Be transparent about FRT practices, and provide consumers with appropriate notice;
- Obtain affirmative express consent before collecting any data when (a) using data in a materially different manner than originally contemplated; and (b) generally, allowing identification of previously anonymous individuals.
The Report offers some concrete recommendations. Where a store’s digital sign identifies even just a consumer’s age or gender for targeted ads, advertisers should provide “walk-away” notice, literally advising consumers to turn around before entering the scanned section of the store, or the store as a whole. Social media providers should not collect or store any biometric data of non-users of their service, because there would be no way to offer practical choice to non-users. The FTC also noted that a (yet to be designed) mobile app allowing consumers to put a name to any and all scanned faces in range of the phone would raise significant privacy concerns.
FRT has clearly been an FTC focus, as the Report follows up on a December 2011 FTC workshop, as well as the testimony of an FTC Associate Director before the Senate Judiciary Committee on the topic. In one respect, the Report is merely an extension of the principals set forth in the FTC’s March 2012 report, “Protecting Consumer Privacy in an Era of Rapid Change.” Nonetheless, FRT has provided the FTC with another arena in which to emphasize its focus on privacy even, as one dissenting FTC Commissioner lamented, when many of the potential uses are merely theoretical at this point.
In terms of enforceability, the Report merely provides guidance to those acting in the field, and is not intended to trump existing legal requirements, or serve as a template for law enforcement actions.
If you have any questions about FRT, privacy matters or other advertising or marketing law issues, please contact Michael Schiffer at (212) 705-4827 or email@example.com, or any other member of the Frankfurt Kurnit Advertising Group.