The Inconsentability of Facial Surveillance

66 Loyola Law Review 101 (2019)

22 Pages Posted:

See all articles by Evan Selinger

Evan Selinger

Rochester Institute of Technology - Department of Philosophy

Woodrow Hartzog

Northeastern University School of Law and Khoury College of Computer Sciences; Center for Law, Innovation and Creativity (CLIC); Stanford Law School Center for Internet and Society

Date Written: March 19, 2020

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.

Keywords: surveillance, privacy, facial recognition, consent

Suggested Citation

Selinger, Evan and Hartzog, Woodrow, The Inconsentability of Facial Surveillance (March 19, 2020). 66 Loyola Law Review 101 (2019). Available at SSRN: https://ssrn.com/abstract=

Evan Selinger

Rochester Institute of Technology - Department of Philosophy ( email )

92 Lomb Memorial Drive
Rochester, NY 14623-5670
United States
(585) 475-2531 (Phone)

Woodrow Hartzog (Contact Author)

Northeastern University School of Law and Khoury College of Computer Sciences ( email )

416 Huntington Avenue
Boston, MA 02115
United States

HOME PAGE: http://https://www.northeastern.edu/law/faculty/directory/hartzog.html

Center for Law, Innovation and Creativity (CLIC) ( email )

416 Huntington Avenue
Boston, MA 02115
United States

Stanford Law School Center for Internet and Society ( email )

Palo Alto, CA
United States

HOME PAGE: http://cyberlaw.stanford.edu/profile/woodrow-hartzog

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