Value of NTIA Multistakeholder Meetings Questioned After Industry, Advocates Fail To Find Consensus
With only a few exceptions, consumer advocates questioned Thursday whether the NTIA multistakeholder meeting on facial recognition should continue if consensus can't be reached on whether opt-in consent would be a baseline requirement. During the stakeholder meeting, NetChoice Policy Counsel Carl Szabo asked consumer advocates to set aside the opt-in, opt-out matter because it’s “just going to be a tug of war” between industry and advocates, with “all ending up in the mud.” Consumer groups declined to put the issue aside, calling it a foundational part of the discussion. After two hours of discussion, consumer groups met during a scheduled break and decided to take a couple of days to think about whether they would continue participating in the multistakeholder process and didn't return for the rest of the scheduled meeting.
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Facial recognition is a biometric, something consumers can’t change, said Consumer Federation of America Director-Consumer Protection and Privacy Susan Grant. Individuals can’t change their facial template, so the information requires a higher level of personal control, Grant said. Illinois and Texas have laws requiring opt-in consent before sharing biometric information with a third party, as do Google and Microsoft, said Alvaro Bedoya, executive director of Georgetown Law's Center on Privacy & Technology. Those policies fall in line with FTC guidance, he said. Texas and Illinois passed their biometric laws in 2007 and 2008 respectively, Szabo said. No other state has passed a similar law in the past seven to eight years and it may not be what the American public wants, he said.
Center for Democracy & Technology's Consumer Privacy Project Director Justin Brookman asked if industry would support opt-in consent before facial recognition technologies could be used to identify and keep data on an individual walking down the street. Szabo said an individual has the right to take photos in public, and requiring consent would raise First Amendment issues. Brookman clarified that he wasn’t suggesting a code of conduct include a ban on taking photos in public. Bedoya said consumer groups are proposing a general opt-in rule and wanted to talk about exceptions, but industry wouldn’t support opt-in for a scenario where strangers are identifying someone on the street. “That’s bananas,” Bedoya said. “If no one can say that’s creepy, then I just don’t know where we go from here.”
Using Nordstrom as an example, Szabo said the market dictates what a business will and won’t do, saying when people “freaked out” about the retailer’s use of facial tracking, it turned off the program. “My gut reaction is to have opt-in in every case,” said Consumer Watchdog Privacy Project Director John Simpson. There may be specific security and fraud cases where opt-in isn't necessary, but consumers have a right to have meaningful control over their data and opt-out is “too easy to disguise in a way where people never know they have an option,” Simpson said.
Center for Digital Democracy Executive Director Jeff Chester proposed every stakeholder write a public policy position paper on facial recognition so it would be part of the public record, with the papers used to determine whether consensus could be found or if the process should be chalked up as a failure. This process was doomed to fail, Simpson said. If the FTC would have been tasked with doing the multistakeholder meetings, the outcome may have been different because the commission would have come up with baseline safeguards, Chester said. The Obama administration chose NTIA to hold the meeting to allow industry to develop new markets like facial recognition and any further industry that may be created thanks to use of facial recognition software, he said. Bedoya didn’t think the outcome would have been different if the FTC hosted the meetings.
Industry stakeholders don’t have any incentive to agree with the position of consumer groups, and don’t do anything that would potentially limit business models, CFA's Grant said. "We’re not making real progress.” The entire process is “awkward,” she said, because no agency has the mandate or ability to moderate such a discussion. Grant said she was considering not returning to future meetings, saying they haven’t been a good use of time.
If this process isn't going to be successful, NTIA isn't going to force stakeholders to continue participating, said NTIA Director-Internet Policy John Morris. “We’re having a fundamental difference in opinion,” said Electronic Frontier Foundation Senior Staff Attorney Jennifer Lynch. Even if industry and advocates can’t agree on a code of conduct, that doesn’t mean consumer groups aren't willing to work with industry on other items, Lynch said. NetChoice's Szabo agreed that there's a “lot of good” that could come from having a discussion about issues like transparency and said he was “willing to entertain” Brookman’s proposal that the NTIA group talk about instances where opt-in and opt-out would be required and “chip away” at scenarios to try to find a middle ground. Chester said there was no reason to discuss at the meeting other issues like transparency or how teens aged 13 and 14 were affected by facial recognition without agreement on the foundational issue of opt-in, opt-out.
Computer & Communications Industry Association Public Policy & Regulatory Counsel Bijan Madhani proposed that instead of a code of conduct, the group come up with best practices. Bedoya said he wasn’t sure if best practices would be possible because consumer groups will continue to want opt-in by default, saying industry may prefer best practices because a code of conduct would be enforced by the FTC.