Collection of Facial Images for Facial Recognition Software Development: Challenges from Consumers

Newly developed facial recognition software is being used in biometric security, retail tracking, robotics, machine learning, law enforcement and government, and many other applications. The technology was developed, among other means, by collecting images of faces when people were playing video games online via their computer webcams. The images of faces were stored and then, when enough faces were collected, machine learning platforms studied the images to develop various applications, including facial recognition.

Take-Two Interactive Software, a large and successful video game company, asked the New York Federal court to dismiss a recent lawsuit brought by video game players, because no actual harm came to the players whose facial images were collected and stored. Attorneys cited the privacy violation as a simple statutory violation, which was not enough, in the absence of harm, to proceed with the lawsuit. The decision is still pending.

Facial recognition, both collecting images and using them in computer applications, is largely unregulated. The Commerce Department tried to begin talks between trade groups, industry, and privacy advocates last year in an effort to come up with voluntary standards, but the effort failed badly.

At this time, facial images can be collected without personal consent whenever a person enters a public space or a private space not his own. Stores routinely use security cameras, and there are no restrictions on how they can use, store, and sell the images collected. Surveillance and image tracking is becoming routine in the hospitality and retail industries.

Large data brokers are collecting and storing personal data, including facial images, not for security but for marketing. The use of facial recognition, geo-fencing, and other tools that identify people by age, gender, social class, preferred activity, shopping behavior, and other variables are designed for marketers to sell that data to business. At this time, no regulations appear to be in the works to prevent personal data, including pictures of our faces, from being sold as an information commodity.

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