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11.17.21

Department of Homeland Security seeks public comment on AI and facial recognition

BY Richard H. Tilghman IV

While facial recognition technologies continue to create controversy and generate headlines—such as Facebook’s recent announcement that it will no longer deploy facial recognition and will delete more than a billion facial recognition templates—other uses of facial recognition appear poised for continued use long term. Most recently, on November 5, 2021, the U.S. Department of Homeland Security (“DHS”) announced that it would be collecting information from the public regarding the “applications of artificial intelligence, including facial recognition,” noting that DHS had already used AI-based technologies for customs and border protection, transportation security, and investigations. DHS’s announcement recognized that these technologies are “not without public controversy, including concerns about bias, security, and privacy” and invited public comment within thirty days to the Office of Information and Regulatory Affairs, Office of Management and Budget.

These same privacy and bias concerns have been noted by other federal agencies, such as the Federal Trade Commission, as referenced in our prior blog post regarding FTC warnings about biases in facial recognition technology and the FTC’s admonition that companies must deploy the technology responsibly.

Current regulations governing the use of facial recognition are generally a patchwork of various state and local regulations, including a wide range of biometric privacy laws. The latest DHS guidance is another example of federal agencies investigating how artificial intelligence and facial recognition systems are being deployed in both the public and private sector. Given the numerous federal privacy bills proposed in Congress in recent years and increased federal interest in these technologies, regulatory activity surrounding facial recognition is an area to watch moving forward.

Those wishing to provide public comment in response to the DHS’s notice can do so here.

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Richard H. Tilghman IV

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