Sen. Al Franken (D-Minn.) took on Facebook over its policies on facial recognition technology during a hearing on Capitol Hill today, criticizing how the popular social network makes it hard for users to opt out of a program that scans photos that are uploaded to the site.
In one exchange before the Senate Judiciary Committee, Franken had his staff hold up signs that depicted screen captures, and said it takes six clicks through Facebook's privacy settings before the term "facial recognition" is even mentioned.
Facebook's manager of privacy and public policy, a lawyer named Rob Sherman, said that he didn't think the words were buried that deep on the site, but that he was not sure.
Sherman testified that Facebook only uses the technology to search a user's friends to "tag" them in a photo, and therefore does not allow identifying strangers in photos. He said the facial profiles are encrypted and work only with proprietary software, and the site shares private information with law enforcement only in certain circumstances.
Franken asked if Facebook can assure the public that it will not share the facial profiles and the software to use them.
"It's difficult to know in the future what Facebook will look like five or ten years down the road," Sherman said. But he said Facebook maintains relationships with the Federal Trade Commission and consumer groups to consult about any changes in the future.
Franken said that was a fair answer, but also indicated that it was the kind of answer that suggested federal laws protecting consumers were needed.
A lawyer for the Electronic Frontier Foundation, Jennifer Lynch, said that Facebook just purchased Face.com, which has 31 billion face images profiled. Facebook automatically scans all 300 million photos uploaded to the site daily.
Lynch urged legislators to create laws shaping how facial recognition can be used, maybe in the way that the Wiretap Act of the Video Privacy Protection Act. "Without legal protections in place, it could be easy for government or company to establish database of all Americans," Lynch said.
Also at the hearing, Duke Law School professor Nita Farahany testified that she did not think that the U.S. Supreme Court would find that they use of facial recognition software by law enforcement or the government would be a violation of the Fourth Amendment.
The Supreme Court has relied on property rights in search cases, and there is no property at stake, Farahany said. The investigative process can also be done from a distance and without the awareness of the subject. And the court has not included personal identifying information as a privacy concern.
Also, individuals whose face is scanned in public cannot expect to be able to conceal their identifying features at that time, Farahany said.