Evan Schuman's StorefrontBacktalk

There are other ways to enroll people. When a person signs up for a loyalty card, a retailer could either take his or her picture with the consumer’s knowledge and consent (voluntary enrollment) or just use a secret camera to take and enroll the image and then link it to the loyalty identity. Again, if consumers have no expectation of privacy in their image and have voluntarily provided their name, this practice may be legal. Legal, but creepy.

Or a retailer could link databases and capture a customer’s license plate or name from a credit card (swiped or not) and then link that information to the image captured. The registration process links the image captured to the identity provided or captured. If neither part is “private,” is the combination of the two private? Like all legal opinions, the answer will depend on the circumstances.

Next is storage and protection. Although I can replace a debit or credit card, if a biometric is “hacked” or altered, it’s really hard for me to get a new face. Moreover, there are issues related to the accuracy of the databases, the accuracy of the linking and the reliability of the image capture, all of which are exacerbated by a failure to protect and secure the database with the biometrics all the way from capture to use.

The biggest issue is how the biometric will be used. Most people would have little problem with taking a picture of an armed robber and using tools to either try and identify the person or provide an alert if the same person is seen again. But the creation and use of a comprehensive database of the observable activities of any person is different in both quantity and quality.

In London, for example, the average person is caught on camera more than 300 times a day. Link these cameras together, and we have a massive database of what ordinary people are doing. Add databases or readers to the mix, and we can link in-store activities with online activities as Home Depot has done. With that, we can see not only what consumers bought, but what they looked at and didn’t buy, what books and magazines they leafed through, what size pants they tried on and a host of other information.

We currently have no legal regime adequate to deal with the massive amount of data and data analytics that can be created through massive deployment and use of facial recognition software. The potentials for use—and misuse—of such systems are only just now being examined.

Related legal issues include false identification. What happens when my twin brother is arrested at gunpoint for trespass? Or when Diane O’Meara (the real-life woman behind the image) is arrested, or worse, for something Lennay Kekua (the fictional doppelganger of Manti Te’o’s girlfriend) allegedly did? How do you get your image back?

There is also the question of linking and sharing. Can a retailer link its cameras and its databases with other retailers? Can a company offer a “know your customer” service? Can the data be shared with law enforcement or intelligence agencies? Currently, there are few rules.

And, of course, all this assumes that facial recognition actually works. I am not sure which is creepier—that it doesn’t work, or that it does.

So for retailers considering jumping onto the facial recognition bandwagon, I would recommend conducting a detailed privacy impact assessment, not only on the technology itself but also on its deployment and use. Don’t start with the assumption that “public” images are “public” and can be used in any way you like. And don’t be creepy.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.