Why Your Face Should Be a Trade Secret

Facial recognition technology is used to unlock phones, unlock doors of luxury homes and lock up criminals. It’s so powerful and rife with the potential to be misused that regulators should treat faces like trade secrets, says Professor Elizabeth A. Rowe on the season finale of “Common Law,” a podcast of the University of Virginia School of Law.

Rowe, one of the world’s leading experts on trade secrets and intellectual property, talks with hosts Dean Risa Goluboff and Professor Danielle Citron about her paper “Regulating Facial Recognition Technology in the Private Sector,” published recently in the Stanford Technology Law Review.

Rowe details not only how private corporations and governments are using facial recognition technology, but offers a glimpse at more extreme cases. In China, the technology is used for deciding whether a loan application will be approved, whether the applicant for health insurance is a smoker, and for everyday business transactions like paying the bill at a retail store — using the customer’s smile.

Treating biometric data more like trade secrets — which have much stronger legal protections than other kinds of information — would offer consumers the kind of defense they will need in response to a significant threat to privacy, she said.

Rowe is the co-author of the first and leading U.S. casebook on trade secrets, in addition to a “Nutshell” treatise on trade secrets. Her research often addresses the intersection of trade secrets with technology, and four of her articles have been named by Thomson Reuters Intellectual Property Review as among the best intellectual property articles of the year. She is affiliated with the Law School’s LawTech Center, of which Citron serves as director.

In a continuation of last season, called “Co-Counsel,” the podcast’s fifth season features Goluboff and four rotating co-hosts: Citron, John Harrison, Cathy Hwang and Gregory Mitchell. Each joins Goluboff to discuss cutting-edge research on law topics of their choice.

“Common Law” is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular podcast platforms. The show is produced by Emily Richardson-Lorente.

Past seasons have focused on “The Future of Law,” “When Law Changed the World” and “Law and Equity.”

You can follow the show on the website CommonLawPodcast.com or Twitter at @CommonLawUVA.