Published by LawTechie - February 7, 2012 - LawTechie

Internet PrivacyThose who have used Facebook’s auto-tagging tools are by now familiar with technology that can recognize human faces and connect said faces with online profile data. It seems that marketing companies have finally realized that such technology could be used for things other than social media annoyance convenience.

The MediaPost reports that consumer advocacy groups have begun to urge the Federal Trade Commission to come up with rules to prevent marketing companies from utilizing the dark side of facial recognition technology without users’ express consent:

The advocacy group Consumers Union last week asked the Federal Trade Commission to set some ground rules aimed at giving people the chance to preserve their anonymity. “No clear standards currently exist for the use of facial identification software, which could allow industry to simply make up rules as they go along,” Consumers Union says in comments filed last week with the FTC.

Specifically, the group argues that companies shouldn’t use facial recognition software without people’s explicit consent.”Consumers should always be able to expressly opt in when the use of facial recognition technology is involved. The privacy risks surrounding facial recognition software are significant, and many consumers are likely to be uncomfortable with the use of this type of technology,” the group wrote.

Indeed, most if not all states already have privacy (aka right of publicity) laws on the books that make it illegal to use a person’s face, name or likeness for a commercial purpose without his or her express approval. See New York Civil Rights Law Sec. 50:

Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

It will be interesting how such laws play out in the context of using people’s faces to market things to them rather than using their faces to market things to others.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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