Privacy Implications of Facial Recognition Technology: Big Brother Has Something To Sell You

The Minority Report was Steven Spielberg’s vision for 2054.

We are 42 years ahead of schedule.

Facial Recognition and Facial Detection Technologies are the latest in consumer privacy concerns.  As the use of facial recognition/detection software becomes more prevalent throughout technology we use daily, consumer privacy erodes, with little actual ‘privacy’ at the core.   As a clear facial recognition profile is compiled on an individual, over repeated data points, data accretion enables an identified facial profile to be associated with content about the individual such as photos, blog posts, travel patterns, shopper profiles and even social security numbers.  There is a threat that credit scores and credit cards will soon be linked.  The following is a primer from the recent presentation I gave at the University of Southern California (USC), discussing the ‘Privacy Implications Surrounding Facial Recognition/Detection Technologies.’  It will illuminate the difference between Facial Recognition and Facial Detection Technologies, address growing privacy concerns & illuminate guidelines companies should employ when using Facial Recognition or Facial Detection Technologies.

Facial Detection Technology vs. Facial Recognition Technology

Facial Detection Technology vs. Facial Recognition Technology

Facial Detection Technology uses someone’s facial characteristics to determine certain general characteristics about that person such as age range and gender, but isn’t focused on actually identifying who that individual is, whereas, Facial Recognition Technology can detect specific facial features which can be used to actually identify an individual across systems and photos.

Facial Detection Technology

One company employing Facial Detection Technology is SceneTap:

Another is Intel’s Aim Suite:

In addition to gender and age statistics, Intel Aim Suite may also tell advertiser the distance viewer is from the sensor and how long the viewer engaged with the advertisement.  With Intel Aim Suite, no images are recorded, no images are stored & no identities are tied to the recognition.

Facial Recognition Technology

Facial Recognition Technology can detect specific facial features which can be used to identify an individual across systems and photos.  Images and unique facial features are saved. Digital signage targeting ads are currently using such technology, as are social networking websites such as Facebook, and Google Plus.  Soon, Facial Recognition Technology will be coming to smartphones via apps, as most of the major operating systems currently support Facial Recognition Software.

Facebook licensed technology from and widely uses Facial Recognition Technology:

  • Apple acquired polar rose and uses Facial Recognition Technology in iPhoto.
  • Microsoft has launched Facial Recognition Technology in Kinect.
  • Google has acquired PittPatt and others and deployed Facial Recognition Software in Picasa.
  • Intel has proposed to use Facial Recognition Software in a Virtual TV Service brought into consumers living rooms.

Emotional Recognition Technology

Emotional Recognition Technology analyzes a consumers emotions, via emotion sensing technology and images of consumers’ faces.

Affective Interfaces, Inc.

Affective Interfaces technology analyzes consumers emotions in real time.  It can be used in advertisements, video games, web applications and more.

Overarching Privacy Interest

Below are a few of the overarching privacy interests:

  • Facial Recognition Technology can identify an individual based purely on facial features alone – with that you can pull associated content about the individual such as photos, blog posts, travel patterns, social security numbers and shopper profiles.  There is a threat that credit scores and credit cards will soon be linked.  As data converges over systems and becomes linked, privacy will erode and intimate details will be linked to your facial data points.
  • Facial Detection is less of a privacy impact, however transparency is the utmost concern.  Companies who use facial detection should be transparent about its use.
  • Consumers have consistently rejected tracking for marketing purposes even on an anonymous basis.  Businesses have a strong interest in being transparent, because not doing so will sensationalize the issue and lead to backlash.
  • Currently, there are no laws that address Facial Recognition or Facial Detection Technology, with the exception of Illinois.

Strong Argument To Be Made:  Consumers are walking around in public without obstructing their  face.

Benefits of Facial Detection Technology:

  • You may get more relevant information
  • You may get real time discounts or promotional codes

Guidelines for Digital Signage & Use of Facial Recognition/Detection Software

Currently, the Digital Signage Federation Privacy Standards are viewed by the FTC as best practice and guidelines to be followed in regards to the Use of Facial Recognition and Detection.  The full DSF guidelines can be found here.  The following highlights the practices that should be implemented when the use of facial recognition or detection software is present.

Layered Notice

  • Privacy policy available on website of the owner of the device;
  • Owner of the location at which the device appears has a privacy policy;
  • Notice on the device itself – physical card on the sign – clearly notify consumers that facial recognition/detection is ongoing and notify consumers in regards to the purposes their data will be used for;
  • Notice at the perimeter of the area where the device is located;


  • Facial Detection should be governed by consumer opt-out practice.  Upon   notice, consumer  can opt to not shop at the establishment.
  • Facial Recognition should be governed by consumer opt-in practice.
  • Various methods of structuring an opt-in, however it must be informed and should be specific opt-in to a particular area.


  • Self regulation by corporations & enforcement via FTC & AGs.

*  Such technology should not be placed in areas where people have a direct expectation of privacy such as   bathrooms, locker rooms, HIPPA areas (i.e. pharmacies) and dressing rooms.

What about facial recognition/detection and minors?                                                          Guideline – Minors under the age of 13 must be deleted immediately.

Privacy Concerns & Data Security

  • Security of retained images, if any; data security is a major concern;
  • Cloud Computing; are these images stored in the cloud?;
  • Encryption; What level of encryption is being used?;
  • 3rd party audits of procedures with in the biometric identification industry;
  • Data Accretion – Combining Data Sets – The ability to match identified facial profiles with associated content about the individual such as photos, blog posts, travel patterns, social security numbers and shopper profiles.  Currently, matching anonymous internet dating profiles with public social and professional networking sites (i.e. Facebook & LinkedIn) is yielding 30% of successly identified profiles, that would be otherwise anonymous.Slide Credit: Alessandro Acquisti – Carnegie Mellon

Administrative Governance

FTC’s Mission: To protect the nation’s consumers as we navigate the market and protect competition as it shapes the economy.  The FTC walks a fine line between encouraging innovative technologies & preserving consumer’s privacy.


As a company employing these technologies, what are you doing to create consumer transparency and prevent administrative actions by the FTC & AG as use continues?

  • How do you as a consumer feel about this technology?
  • Think about your political beliefs…what about facial recognition at political  events?
  • Ethnicity targeting?
  • Real time surveillance?
  • How do we strike a balance? How do you define what is creepy and what is not?


Tiffany A. Kahnen is the Founding Corporate Attorney at Four Corners General Counsel.  FCGC provides corporate legal counsel at a Fixed Value Price, flat fee.  We work closely with e ach client to develop legal solutions custom tailored to fit their unique needs, at a predictable rate they can budget for.  We handle all aspects of corporate law, including contractual transactions, risk management & dispute resolution.

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2 Responses to Privacy Implications of Facial Recognition Technology: Big Brother Has Something To Sell You

    • Hello Ian,

      Thank you for your comment. Facial Detection Technology carries far less privacy implications than Facial Recognition Technology, due to the fact that Facial Recognition Technology actually enables identification of an individual based on the data points compiled from images. The data accretion that may occurs subsequent to the biometric identification, through the use of facial data, becomes a powerful tool at linking information across systems and data banks to an individual that may have otherwise been anonymous. Additional privacy concerns surface when evaluating the possibility of false identification and data storage. Remember, if these images are being captured and stored, a compilation of your unique facial data points is also being captured and stored. Imagine a worldwide index of the individual fingerprints.

      When evaluating the privacy implications that arise from Facial Detection Technology, the main concern is the targeted advertising and an individual’s expectation of privacy in regards to displayed anonymous characteristics, such as gender, age and emotion. The main component that tempers privacy concerns in regards to Facial Detection Technology is the fact that such technology does not provide a biometric identification of the individual, linking their facial profile to a consumer’s identity. There are strong arguments to be made that if an individual places themselves in a public forum they forfeit their right to privacy in regards to visibility. Emotions, expressions, gender or age are visible on an individual’s face, which they have opted to place in public view.

      Those opinions being expressed, as a company moving forward in the Facial Detection or Facial Recognition Technology sector, it is paramount that transparency to the consumer or user is built in by design. In regards to usage of Facial Detection Technology in digital signage, DSF is recommending as best practice transparency and conspicuous notice of the use of such technology. The onerous will be on the consumer or user to opt-out. This, however, would need to be specifically evaluated on a case by case basis.

      I hope this addresses your question. If you have any further questions about this topic or a legal matter on your desk, please do not hesitate to contact us or leave a reply.

      Warm Regards,

      Tiffany A. Kahnen
      Founding Attorney | Four Corners General Counsel

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