Troutman Sanders LLP: 'Facing' Reality: Facebook Knows What You Look Like

It's a bit odd to think that about whether you have a privacy right in what you look like. But as companies continue to gather enormous amounts of all kinds of data - including faces - and wrestle with whether they can monetize that data, the fear of "Big Brother" continues to spark debate.

A few weeks ago, Facebook purchased, an Israeli company that makes facial recognition technology and has 31 billion face images profiled. Consider this with the fact that Facebook automatically scans all 300 million photos that users upload to the site every day. Though Facebook has been using facial recognition software for approximately two years, this recent acquisition of a company that specializes in facial recognition and mobile devices has rekindled privacy concerns.

Currently, Facebook is capable of recognizing faces through software that "learns" an individual's face using the photos that have already been "tagged" with that person's name. This means that when your friend uploads a picture of you on Facebook, the facial recognition software allows Facebook to "suggest" to your friend that the person in the picture is you. While Facebook does not make these suggestions to users that are not your friends and Facebook's privacy settings allow you to "opt-out" of being suggested in your friends' pictures, it does not mean that the software stops learning your face or storing this information in Facebook's huge cache of data. So you may not be currently able to snap a picture of a stranger walking down the street, upload it to Facebook, and find out their name/hometown/place of employment, but it's not for a lack of technology.

To address growing privacy concerns regarding facial recognition technology (not Facebook's specifically, but generally), the Senate Subcommittee on Privacy, Technology and Law met on July 18, 2012. The Subcommittee's two greatest concerns expressed during that meeting were that (1) faces cannot be changed for protection (as passwords or names can be); and (2) neither an individual's permission or interaction (except being out in public) is necessary for his or her face to be captured (which begs the question as to whether the information is really "private"). The Subcommittee wants Facebook to change its privacy settings such that an individual would have to "opt-in" to facial recognition, but a Facebook representative who commented to the Subcommittee maintained that the "opt-out" approach makes sense, as the entire Facebook experience is one regarding which users have "opted in" to share their lives.

As is sometimes the case, the law is trying to play catch-up to technological advances that are already in the marketplace, at least in the United States. Although there are existing causes of action for certain "invasions of privacy," such as misappropriation of image and public disclosure of private facts, there are currently very few restrictions (legal or social) on the use of facial recognition in the U.S. Certainly, the long-standing "invasion of privacy" causes of action don't nicely cover this new technology and its rapidly changing applications. Perhaps as a result, Senator Al Franken, who chairs the Subcommittee on Privacy, Technology and Law, has stated that Congress may need to pass legislation that limits how government agencies and private companies use facial recognition technology.

While that would be new in the U.S., it wouldn't be a first. In Germany, the Data Protection Authority began legal action against Facebook last year for its use of facial recognition technology which the DPA claims violates Germany's privacy laws. The German action is currently on a hiatus, pending the outcome of an Irish privacy audit of Facebook, which is scheduled to be released no later than October this year. Ireland is the site of Facebook's international operation, which is responsible for all of Facebook users outside of the US and Canada. The outcome of the Irish audit could have consequences for Facebook's policies worldwide and even affect whether or how Congress chooses to take steps in regulating facial recognition technology and companies that conduct business with social media networks that use such technology.

For more information, contact Mary Jane Yoon or John Hutchins

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Troutman Sanders is an international law firm with offices in North America, Europe and Asia. Founded in 1897, the firm's heritage of extensive experience, exceptional responsiveness and an unwavering commitment to service has garnered strong, long-standing relationships with clients across the globe. These clients range from multinational corporations to individual entrepreneurs, federal and state agencies to foreign governments, and non-profit organizations to businesses representing virtually every sector and industry.

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