facial recognition technology Photo: Shutterstock

Last week Oakland, California, became the third U.S. city, after San Franciscio and Somerville, Massachusetts, to ban the use of facial recognition technology by its municipal agencies. 

Lawmakers from all three cities have argued that facial recognition surveillance could lead to significant harm, including misidentification and subsequent false incarcerations.

While other local lawmakers weigh facial recognition technology's risks and benefits, lawyers say the rapidly changing legal landscape makes compliance difficult for clients, especially as laws regulating such technology are only like to spread.

Although Hogan Lovells partner Mark Brennan said it's too soon to know if the bans are a trend, he noted, “We've seen and expect additional discussions on biometric data and the appropriate frameworks for those technologies.”

Sheryl Falk, partner and co-leader of Winston & Strawn's global privacy and data security task force, doesn't foresee the bans becoming a trend because of the security and efficiency the technology provides, from solving crimes to streamlining identification. Instead, she sees more legislation regulating biometric data and technology beyond the Texas, Washington state and Illinois biometric laws.

“I do see consumers care about their privacy and you may well see more laws that require companies to give notice or consent,” she said.

With Michigan and Massachusetts discussing similar prohibitions, Falk noted the rapidly changing regulatory landscape makes it “tricky” for companies to understand what's permitted. 

Brennan agreed, noting that the complexity of the varying biometric regulations have led to some companies not including product features based on geography. 

“One of these unfortunate outcomes from states that overregulate in this area is that leading companies—household names—have in response not offered products or features in those states,” Brennan said. “Those decisions are because of a lack of clarity in the law and impractical provisions that lend themselves to plaintiffs filing lawsuit after lawsuit.”

Brennan and Falk agreed a framework developed with insight from lawmakers, subject-matter experts and private industry is essential in creating a well-drafted biometric privacy law. Brennan said it's no longer a question of whether to regulate “but that the expectations are clear and the ability to provide the service remains intact.”

He added that cities that have banned their local agencies from using facial recognition tech may have missed an opportunity to later shape state-level regulations. “Those governments no longer have a direct seat at the table as participants.”

He cautioned that developing a framework that protects consumers will be sidetracked by discussions regarding if county ordinances are preempted by the proposed state or federal law. 

“We saw this last year in California around the passage of the California Consumer Privacy Act, there were efforts by California counties to pass municipal-level consumer acts. The state preempted the localities and what they wanted and [the localities] were not key players,” Brennan said. He added, “The local government lost its ability to have a voice in the conversation.”