The debate over commercial and personal use of facial recognition technology was bound to be contentious once you put technology companies in the same room with hard-line privacy advocates.  But recent developments call into question whether compromise is even possible.

In February, the National Telecommunications and Information Administration (NTIA) kicked-off a process to develop a voluntary code of conduct for how companies and their customers use facial recognition tools. This week, participants in the process – including privacy advocates, companies, and technologists – will meet again to try finding areas of consensus.


If recent history is any indication, consensus will be very hard to find.

While everyone agrees that facial recognition is powerful, useful technology, and that users should have control over how their images are shared with others, getting beyond that point has been a challenge, the extent of which snapped into sharp focus last month.

Everyone in the room agreed that users should have the right to control the sharing of their images, and opt-out of being tagged in photos shared by others.   But some advocates want to sideline consumers’ use of this technology.

The American Civil Liberties Union (ACLU) and Consumer Action recently called for prohibiting any use of facial recognition without prior written consent of the folks being tagged.  At first blush this sounds like a reasonable position – until you realize what this strict rule would require.

Under this extreme rule, before using the built-in tools of iPhoto and Picasa to tag your family vacation photos, your own family must first submit written approvals.   We assumed that this strict consent rule was meant only for photos shown online, and not for pictures on your own phone or computer.   But when we sought clarification, privacy advocates said the principles apply to all tagging, whether public or personal.

Even if the ACLU and Consumer Action position only held for Internet images, it would be radical, given the prevailing practice where your photo subjects can opt-out, rather than opt-in, to online photo tags. But the idea that users would need to go through multiple third-party approval processes to manage their own images on their own computers, is so far out that it’s hard to conceive how it could ever lead to a compromise approach.

It’s certainly not unheard of in Washington to start with a radical position with the understanding that it will be adjusted in the negotiation process.  Hopefully the privacy advocates’ position is more a bargaining tactic than an actual vision of how facial recognition should function.

If this is merely positioning, the advocates will need to move into the bargaining phase of their plan fairly quickly. The online industry wants to achieve consensus and this week’s NTIA meeting is critical and will reveal whether consensus is anywhere to be found.   Unfortunately, achieving consensus is difficult if one side can’t even see the bargaining table from the distant position on which they’ve begun.

Szabo is policy counsel for NetChoice.