Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

2019

ISSN

0192-9720

Publisher

School of Law, Loyola University

Language

en-US

Abstract

Governments and companies often use consent to justify the use of facial recognition technologies for surveillance. Many proposals for regulating facial recognition technology incorporate consent rules as a way to protect those faces that are being tagged and tracked. But consent is a broken regulatory mechanism for facial surveillance. The individual risks of facial surveillance are impossibly opaque, and our collective autonomy and obscurity interests aren’t captured or served by individual decisions.

In this article, we argue that facial recognition technologies have a massive and likely fatal consent problem. We reconstruct some of Nancy Kim’s fundamental claims in Consentability: Consent and Its Limits, emphasizing how her consentability framework grants foundational priority to individual and social autonomy, integrates empirical insights into cognitive limitations that significantly impact the quality of human decision-making when granting consent, and identifies social, psychological, and legal impediments that allow the pace and negative consequences of innovation to outstrip the protections of legal regulation.

We also expand upon Kim’s analysis by arguing that valid consent cannot be given for face surveillance. Even if valid individual consent to face surveillance was possible, permission for such surveillance is in irresolvable conflict with our collective autonomy and obscurity interests. Additionally, there is good reason to be skeptical of consent as the justification for any use of facial recognition technology, including facial characterization, verification, and identification.

Find on SSRN

Included in

Privacy Law Commons

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.