By Divya Prasad
In July 2018, Microsoft’s president and chief legal officer, Brad Smith, called upon the U.S. government to regulate facial recognition technology. Acknowledging the increasing pervasiveness of this technology, this post will discuss the concerns and countervailing considerations of regulating facial recognition technology.
Tech giants including Apple Inc., Facebook Inc., and Alphabet Inc.’s Google products currently use and develop facial recognition technology. Considering those companies’ significant investments in facial recognition technology, strict legislation could introduce unexpected legal barriers for tech companies and slash their profit projections. Certainly, potential regulations could also constrain the growth and development of the technology. As such, regulatory bodies should find a way to protect the public’s privacy without constraining the advancement of facial recognition software.
Businesses selling facial recognition software in consumer markets include companies like Motorola Solutions Inc. (“Motorola”) and Amazon.com, Inc. (“Amazon”). For example, Amazon sold its facial recognition technology, Rekognition, to law enforcement organizations. Amazon indicates that law enforcement could use Rekognition to find abducted people or locate lost children. Similarly, Motorola partnered with Neurala to make body-cams for police officers to wear. Once deployed, the facial recognition software integrated into the body cams could help police identify suspects or find missing children in crowded spaces.
Responding to Amazon’s sale of its facial recognition technology to the police, the American Civil Liberties Union (“ACLU”) and other civil rights organizations sent a letter to Amazon’s CEO, Jeff Bezos, “demand[ing] that Amazon stop powering a government surveillance infrastructure that poses a grave threat to customers and communities across the country.” Led by the ACLU, over 40 organizations signed the letter indicating that the powerful technology may be used to violate constitutional rights and specifically target people of color. Since the technology would be able to track “people of interest,” the organizations argue that “those labeled suspicious . . . , such as undocumented immigrants or Black activists,” could be targeted by the technology. The organizations also attest that the sale of this technology to law enforcement agents goes against Amazon’s noted reputation as a customer centric company, and strongly implores Amazon to cease any future sales of the technology to law enforcement.
From the perspective of a business selling the technology, uninformed restrictions imposed on those transactions could protect consumers’ privacy but sacrifice large scale profit for large tech companies, encroach on their freedom to contract, and diminish the positive applications of the technology. Legislators seeking to create or amend regulations on facial recognition software should carefully weigh whether the decreased privacy for consumers outweighs the increased access to innovative technology. There are still a range of unresolved questions about if and when law enforcement may lawfully use facial recognition technology to conduct searches. It will be interesting to see how courts and legislators grapple with these questions.
 See generally Jay Greene, Microsoft Calls on Government to Regulate Facial-Recognition Technology, Wall St. J. (Ju1y 13, 2018, 11:00 AM), https://www.wsj.com/articles/microsoft-calls-on-government-to-regulate-facial-recognition-technology-1531494001?mod=searchresults&page=1&pos=2 (providing useful background information on the pros and cons of regulating facial recognition software).
 See id. (clarifying that these “tech-giant rivals have made significant bets” in creating software with facial recognition technology).
 See id. (highlighting that facial recognition technology is “an area Apple Inc., Alphabet Inc.’s Google, Facebook Inc. and other tech-giant rivals have made significant bets, and where Microsoft has made its own investments.”).
 See Natasha Singer, Microsoft Urges Congress to Regulate Use of Facial Recognition, N.Y. Times (July 13, 2018), https://www.nytimes.com/2018/07/13/technology/microsoft-facial-recognition.html (suggesting that technologies like facial recognition software “have the potential to remake industries.”).
 See id. (“civil liberties experts . . . warn that the technology could enable mass surveillance, hindering people’s ability to freely attend political protests or go about their day-to-day lives in anonymity.”).
 See Jay Greene, Amazon’s Facial Recognition Fans Big Brother Fears, Wall St. J. (May 22, 2018, 5:45 PM), https://www.wsj.com/articles/amazons-facial-recognition-fans-big-brother-fears-1527025556?mod=article_inline (reporting that Amazon sells facial recognition technology to aid authorities with “identify[ing] suspects in surveillance footage”).
 See Elizabeth Dwoskin, Amazon is selling facial recognition to law enforcement — for a fistful of dollars, Wash. Post (May 22, 2018), https://www.washingtonpost.com/news/the-switch/wp/2018/05/22/amazon-is-selling-facial-recognition-to-law-enforcement-for-a-fistful-of-dollars/?noredirect=on&utm_term=.4d7018eabf50 (sharing key points from an interview with Amazon spokeswoman Nina Lindsey on Amazon’s facial recognition technology).
 See Shibani Mahtani and Zusha Elinson, Artificial Intelligence Could Soon Enhance Real-Time Police Surveillance, Wall St. J. (April 3, 2018, 1:51 PM) https://www.wsj.com/articles/artificial-intelligence-could-soon-enhance-real-time-police-surveillance-1522761813?mod=article_inline (claiming that the technology will be ready for deployment in the Fall of 2018).
 Letter from American Civil Liberties Union et. al. to Jeff Bezos, Founder and Chief Exec. Officer of Amazon Inc. (May 22, 2018), https://www.aclunc.org/docs/20180522_AR_Coalition_Letter.pdf?mod=article_inline.