Facial recognition technology (“FRT”)—once a futuristic fantasy—is more pervasive than ever and shows no signs of becoming less prevalent. While this technology has its upsides, it elicits the notion of an omnipresent being that is watching and tracking us all the time. FRTs encroach on the First Amendment right to anonymous speech by revealing the identity of speakers and chilling speech. Yet, First Amendment doctrine does not provide much solace, since the right to anonymous speech regulates the government’s ability to force disclosure of a speaker’s identity rather than preventing it from collecting publicly available facial data. The right to anonymous speech also clashes with private actors’ right to collect and disseminate information, which provides an avenue for private actors to destroy anonymity. And private actors’ First Amendment rights allow them to collect and develop FRT they can use in private spaces.
In addition to inadequate speech rights, litigating FRTs’ impacts on the right to anonymous speech is likely to face significant barriers in court. Specifically, plaintiffs will find it hard to show they have been affected by these systems and that their speech has been chilled, giving them no standing. Further, courts’ deference to the legislative and executive branches on issues of crime control and national security might justify an encroachment on the right to anonymous speech. Finally, private parties’ rights to collect and disseminate information pose serious barriers to challenge privately-operated FRTs and provides the government an additional avenue to gather facial data and track individuals. Prophylactic legislation is a stronger solution to remedy the issues caused by FRT. Such legislation can regulate the government’s use of FRT, private actors’ implementations of FRT, and the very creation of FRTs themselves.
The Public Square Has Eyes (or Cameras): Anonymous Speech Under the First and Fourth Amendments in the Age of Facial Recognition,
32 Fordham Intell. Prop. Media & Ent. L.J. 630
Available at: https://ir.lawnet.fordham.edu/iplj/vol32/iss3/3