The lack of federal regulation of commercial facial recognition technology (“FRT”) companies, which use “face mapping” to capture and store Americans’ biometric information, places the onus on states to protect citizens’ most sensitive data. And with the recent prevalence of large-scale data breaches, Americans must ask when—not if—their biometric data will be exposed. Since onset of the COVID-19 pandemic, government agencies have increasingly required citizens to use these companies to access services like unemployment or social security benefits, essentially resulting in a citizen’s “forced consent” to the companies’ biometric handling policies. Undeniably, FRT has become a vital part of society. Yet, without federal regulation of FRT companies’ biometric practices, third-party collection of biometric data on behalf of the government leaves Americans vulnerable to irreparable harm.
This Article addresses the benefits of FRT as well as the potential consequences for Americans if FRT is left unregulated. The Author focuses on the governmental use of commercial FRT companies—specifically, commercial FRT companies Clearview AI and ID.me. The Author explores current state biometric laws, privacy laws, and the Federal Trade Commission’s role in enforcing federal privacy regulations pertaining to biometric information. Finally, the Author recommends federal legislation that creates a national biometric safety board to ensure the handling and security of an individual’s biometric information.