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Abstract

This Note provides a general review of the current state of Facial Recognition Technology (FRT), including Illinois state regulation and past federal regulation attempts. This Note asserts that even as datasets become more diverse and “fairer,” FRT may still have discriminatory impacts on minority populations, as evidenced by a few highlighted examples that focus on race and gender. This Note suggests that one option to mitigate these dangers is to implement national regulations for its use. Ultimately, this Note suggests what a federal regulation might look like, informed by the societal impacts discussion.

After an introduction in Section I, Section II provides a brief overview of the history of FRT, how it works, and where it is used. Next, Section III dives into the Illinois Biometric Information Privacy Act (BIPA), focusing on what distinguishes it from the plaintiff’s perspective and recent amendments to the Act. To expand on this discussion, Section IV discusses two case illustrations that exemplify what BIPA litigation should look like and the impact that these court holdings have had on the statute. Section V looks at the past and current federal FRT regulation, including past failed federal enactment attempts. Finally, Section VI discusses the societal impacts of FRT and the benefits of a united federal regulatory system. This Note concludes with an idealized federal regulation suggestion, grounded in BIPA and the American Data Privacy and Protection Act.

The focus of this Note is to provide a foundational understanding of FRT and ultimately provide an explanation for how the information fed into FRT models is analyzed. By looking through the lens of BIPA and homing in on the inner workings of a single state’s statute, this Note focuses on a few of the current rights and regulations in place and how they are used to protect against the misappropriation of biometric data. As the Note shifts toward a discussion about the societal impacts of FRT, the focus is on the discriminatory outcomes as a main danger of FRT.

The introductory information laid before the societal implications discussion helps to highlight how the impacts discussed are a direct result of FRT systems and current regulations. This Note contributes to the current discussion about potential bias in face surveillance and biometrics technology, seeking to fill gaps in the current literature by using BIPA as a lens for viewing current regulations, combined with a societal impact analysis. This Note presents an idealistic suggestion for federal regulation that would harmonize national usage and protections for FRT and biometrics in the future.

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