The Right to Your Face: Privacy at the Intersection of Virtual Reality and Facial Recognition
By Alexander McGrail; Photo Credit: Gina Tomko/Education Week + Canva
Two Harvard students recently found themselves thrust into the limelight after a video they made testing facial recognition software in Meta glasses went viral.[1] Using fairly basic tools available to anyone they were able to construct a tool that allowed them to access the personal information, such as the home address and other public information, of random people on the street from their online footprint.[2]
This heightens existing concerns about the right to privacy in the modern era, especially in the context of the existence of Big Data and the significant amount of information available through the internet. While these students have declined several offers to commercialize their accomplishment,[3] it is only a matter of time before someone with less scruples develops the same technology.[4]
In Massachusetts, where this technology was deployed, the law permits the identification of people with facial recognition technology.[5] While many states have expressed concerns about the expanding use of facial recognition technology, this has mostly been restricted to its use by law enforcement agencies.[6] There has been a significant push in several states to curtail the use of these technologies in law enforcement with varying degrees of success.[7]
The Fourth Amendment itself imposes significant restrictions on the use of these technologies by public authorities,[8] but, as the case at hand demonstrates, additional protections may be required against private actors.[9] Coupled with the massive data collection practices of the modern age, this technology potentially poses a serious threat to the principle of individual privacy.[10]
As this technology develops faster than regulatory frameworks can change to monitor it, it is imperative that a framework be developed with the flexibility to respond to the many significant issues this could pose.[11] While there are issues with the use of recording software in public spaces, the ubiquitous use of smartphones has already given every person a recording device in their pocket. However, the threat that this new technology poses is in the vast swathes of data it collects on everyone it monitors.[12] Often using tools commonly found online, it can gather significant personal information on databases that are regulated inconsistently and create a significant risk of breach.[13]
States have acted to regulate these spaces in an absence of federal response but these are often patchwork solutions that leave gaping holes due to the nature of data in a medium easily transferrable across state lines.[14] The rapidly developing technology in this space often leaves states fumbling to play catchup as they struggle to develop the expertise with the software already being used, while a new generation is under development.[15] These flaws in regulation by the state demands a federal response to the issue, a framework that is not only able to respond to the threats of today but also flexible enough to adapt to the threats of tomorrow.[16]
Alexander McGrail is a 2L at Vanderbilt Law School. He plans to focus on White Collar Litigation after law school.
[1] Kashmir Hill, Two Students Created Facial Recognition Glasses. It Wasn’t Hard, N.Y. Times (Oct. 24, 2024), https://www.nytimes.com/2024/10/24/technology/facial-recognition-glasses-privacy-harvard.html.
[2] AnhPhu Nguyen and Caine Ardayfio, I-XRAY: The AI Glasses that Reveal Anyone’s Personal Details Just From Looking at Them, https://docs.google.com/document/d/1iWCqmaOUKhKjcKSktIwC3NNANoFP7vPsRvcbOIup_BA/edit?tab=t.0.
[3] Hill, supra note 1.
[4] See id. (Meta has developed similar technologies already but have declined to release them to the public due to the privacy interests).
[5] Id.
[6] See generally Colo. Rev. Stat. Ann. § 24-18-302; Va. Code Ann. § 52-4.5; Md. Code Ann., Crim. Pro. § 2-503; Dayton, Ohio, Code of Ordinances § 34.10 (2021).
[7] Id.
[8] Srivats Shankar, Fourth Amendment Constraints on Automated Surveillance Technology in the Public to Safeguard the Right of an Individual to be “Secure in Their Person,” 18 J. Bus. & Tech. L. 209, 212 (2023).
[9] Hill, supra note 1.
[10] David Abrams, What Stays in Vegas: The Road to “Zero Privacy,” 49 New Eng. L. Rev. 611, 620–21 (2015).
[11] Elias Wright, The Future of Facial Recognition is Not Fully Known: Developing Privacy and Security Regulatory Mechanisms for Facial Recognition in the Retail Sector, 29 Fordham Intell. Prop. Media & Ent. L.J. 611, 667 (2019).
[12] See id. at 622.
[13] Id. at 681.
[14] Id.
[15] See id.
[16] Id.