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FTC nominee's research shows focus on facial recognition, privacy rights

The nomination of legal scholar Alvaro Bedoya to the Federal Trade Commission signals the potential for the agency to tackle regulations regarding the use of facial recognition technology.

As the Federal Trade Commission's regulatory agenda begins to take shape under newly appointed Chair Lina Khan, the agency has started actions related to competition and privacy rights reforms. Given Bedoya's past writing and research, policy and civil rights experts say facial-recognition technology is one of the key areas that the legal scholar is likely to address if his nomination to the five-member commission is confirmed. Bedoya, a former Senate staffer, is the founding director of the Center on Privacy and Technology at Georgetown Law.

Bedoya declined to comment for this article. In his previous academic publications, the FTC nominee has called for facial-recognition technology regulations and outlined model legislation that could be used by Congress or a state legislature. The FTC has no rules specific to the use of facial-recognition software, nor has Congress passed any federal legislation regarding the technology.

Kate Ruane, senior legislative counsel for American Civil Liberties Union, said Bedoya's research offers an opportunity for the FTC to do more in the arena of facial recognition technology and to examine how its use in policing has impacted minority communities.

"I think that a lot of what Mr. Bedoya and his team have looked at with respect to facial recognition has uncovered a lot of the unfairness that exists in the uses of these algorithms," Ruane said. "It winds up disproportionately misidentifying people of color, which disproportionately causes harm to those communities."

Probable cause

A model bill in Bedoya's 2016 paper, "The Perpetual Line-Up: Unregulated Police Face Recognition in America," outlines several limits that could be placed around the software's use, including requiring that facial-recognition-powered searches of drivers licenses and ID photos should occur only with a court order. The paper also suggests requiring mug shot databases that use facial-recognition technology to exclude people who were ultimately found innocent of an offense or who had charges against them dropped.

Several states in recent years have enacted their own legislation on facial-recognition technology in the absence of a federal standard. Maine passed a facial recognition ban in June that requires law enforcement officials only use facial recognition technology if they can show probable cause to do so. California in 2019 enacted a law that prohibits law enforcement agencies from using biometric surveillance systems in officer body cameras.

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Possible gridlock

How quickly the FTC might take up facial recognition rulemaking is unclear. Complicating the outlook is the specter of partisan gridlock given that Democratic Commissioner Rohit Chopra is leaving the agency before Bedoya is confirmed. FTC officials confirmed that Chopra's last day with the agency is Oct. 8.

Chopra is leaving for another Biden administration position, as the head of the Consumer Financial Protection Bureau. With Bedoya's FTC confirmation still pending, Chopra's departure leaves the commission with a 2-2 party-line split that may slow major decisions, at least temporarily.

The FTC's authorization of an amended federal complaint against Facebook Inc. passed in a 3-2 vote, for example, with Republican Commissioner Christine Wilson issuing a dissenting statement. While Bedoya's nomination is pending, the FTC may choose to move forward with lower-profile agenda items that are less controversial, such as streamlining internal agency procedures or consumer protection items like going after scam artists, said Alex Petros, policy counsel with consumer interest group Public Knowledge and a former colleague of Bedoya's.

If Bedoya is confirmed, he is expected to be a reliable, third Democratic vote on the five-member commission headed by Chair Khan, said Bill Kovacic, former FTC chair and current law professor at George Washington University.

Privacy agenda

The FTC under Khan is currently focused on potentially anti-competitive behavior by Big Tech companies, as well as certain rulemakings related to reforming existing privacy regulations.

"He [Bedoya] has limited experience on the competition side, and that is obviously an extremely high priority right now for the commission," said Ben Gris, antitrust partner with Shearman & Sterling and a former assistant director of the FTC’s Bureau of Competition. "When he comes in, there's going to be an urgency to get him up to speed on competition issues."

The FTC is also looking into whether to make proposed changes to two existing privacy rules, the Children's Online Privacy Protection Act, or COPPA, Rule and the Health Breach Notification Rule, as well as new rules around deceptive online practices known as dark pattern techniques.

If confirmed, Bedoya's influence at the FTC could help to build momentum for crafting federal privacy legislation, said Alexandra Reeve Givens, president and CEO of the Center for Democracy and Technology and a former colleague of Bedoya's at Georgetown Law.

Givens said Bedoya will play an "important role in moving that agenda forward in collaboration with his colleagues on the commission."

The FTC declined to comment for this article, but Khan said in an Oct. 1 statement that the commission should approach data privacy and security protections by considering "substantive limits rather than just procedural protections" while being mindful of the ways behavioral ad-based business models can incentivize constant surveillance.

"There is a lot that the agency could be doing not only thinking about law enforcement use [of facial recognition technology] but also use in the private sector by companies," said Caitlin Seeley George, campaign director at Fight for the Future, a nonprofit group focused on digital rights.

Facebook and Amazon.com Inc. both previously announced plans to limit the use of their facial-recognition technology. Amazon said it would indefinitely prohibit police officers from using its facial recognition tool, Rekognition. Facebook announced in 2019 that it would make it easier for users to turn off facial recognition features. Neither company returned inquiries for this article.