Comments of the Knowing Machines Research Project to the Federal Trade Commission Regarding the Trade Regulation Rule on Commercial Surveillance and Data Security

Federal Trade Commission Rulemaking Docket FTC-2022-0053

46 Pages Posted: 16 Dec 2022

See all articles by Melodi Dincer

Melodi Dincer

UCLA School of Law

Kate Crawford

AI Now Institute; Microsoft Research

Date Written: November 21, 2022

Abstract

On August 22, 2022, the Federal Trade Commission published an advance notice of proposed rulemaking (ANPR) requesting public comment on an intended Trade Regulation Rule on Commercial Surveillance and Data Security.

In this Comment, the Knowing Machines Research Project (“Knowing Machines”) urges the Commission to consider new rules that forbid or limit the development, design, and use of a biometric commercial surveillance practice known as “emotion recognition." Emotion recognition technologies claim to be able to detect a person’s internal emotional state based on algorithmic systems trained to analyze facial expressions that appear in photo or video content. These systems are based on the dual premises that (1) facial expressions map onto a limited, universal set of emotions, and (2) algorithmic systems, including machine-learning (ML) tools, can accurately gauge consumers’ feelings to serve commercial ends.

While both these premises lack scientific support, the harms these systems pose to consumers are real. Emotion recognition companies deceive consumers with misleading and unsubstantiated claims about what their tools can do, a prototypical “faulty conclusion” flaw fueled by failures in experimental theory, methodology, and design. These tools are unfair to consumers, especially people of color and people with disabilities who are likely to bear substantial, unavoidable injury without any countervailing benefits to consumers or competition. These tools also threaten consumer privacy by encouraging the surveillance and assessment of our intimate, private emotions.

With this Comment, the Knowing Machines Project asks the Commission to investigate and, where appropriate, prohibit the deceptive and unfair practices that emotion recognition companies conduct.

Keywords: Surveillance, Biometrics, Emotion Recognition, Facial Recognition, Consumer Protection

JEL Classification: K19, K29, K39

Suggested Citation

Dincer, Melodi and Crawford, Kate, Comments of the Knowing Machines Research Project to the Federal Trade Commission Regarding the Trade Regulation Rule on Commercial Surveillance and Data Security (November 21, 2022). Federal Trade Commission Rulemaking Docket FTC-2022-0053, Available at SSRN: https://ssrn.com/abstract=4292217

Melodi Dincer (Contact Author)

UCLA School of Law ( email )

Los Angeles, CA

Kate Crawford

AI Now Institute ( email )

60 5th Ave
8th floor
New York, NY New York 10011
United States

Microsoft Research ( email )

641 Avenue of the Americas
641 Avenue of the Americas, level 7
New York, NY NY 10011
United States

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