Regulating Facial Recognition Technology in the Private Sector

As Congress considers possible federal regulation of facial recognition technology in the US, it is important to understand the way in which this technology is utilized, especially in the private sector, as well as the benefits to and concerns of the various stakeholders. The absence of federal regulation in this space has created much uncertainty for companies and consumers alike. Accordingly, as we stand at the crossroads of this highly significant decision, to regulate or not to regulate, this Article endeavors to identify common interests and common areas of concern among the various stakeholders, including developers of the technologies, business users, and consumers (broadly conceptualized as private individuals, business to business, and government users). With those in mind, it poses certain guided questions to outline the contours of any regulation. Finally, it recommends three concrete and tailored steps toward crafting regulation of facial recognition technology. These include applying a differentiated approach to regulating in this area, providing precise and practical guidance for companies to navigate storage, use, collection, and sharing of biometric data, and considering trade secrecy as one potential reference point from which to address the standards necessary to tackling each of the key areas of concern.