United States: Apple X's Face ID Feature Places Spotlight On Facial Recognition Technology, Raising Numerous Mobile Privacy And Data Usage Issues

This week's Apple X announcement was not more than a few hours old, and the questions began to come in. Apple's introduction of Face ID facial recognition on its new phone – although already available in some form on several Android phones – generated curiosity, concerns and creativity. Unfortunately, the details about specifically how the recognition feature will really work are yet unknown. All the public knows right now is that the phone's facial "capture" function, powered by an updated camera and sensor array, will direct 30,000 infrared dots around a user's face and create a hashed value that will presumably be matched against a user's face during the unlocking procedure.

The questions and issues this raises are too numerous and varied to address in a single blog post. I will simply point out that the concerns over Face ID range from spoofing (e.g., Can the phone be unlocked by a picture? [Apple says no, explaining that the system will map the depth of faces]) to security (e.g., Is the "face map" or hashed value stored in a database which can be breached? [Apple, says no, like fingerprints in Apple's current Touch ID feature, the face map will be securely stored locally on the device]).

One issue that I thought was particularly interesting, however, relates to the ability of apps residing on a phone to interact with facial captures. Unless disabled, Face ID could potentially be "always on," ready to capture facial images to authenticate the unlocking of the phone, and possibly capturing facial images as the user interacts with the unlocked phone. So, clients have asked: Will the apps on the phone be able to access and use those facial captures?

Fascinating question! Imagine the applications. An app would be able to discern all kinds of new demographic information about users, and possibly gauge information about a person's mood, location, age, and health. Moreover, could an app evaluate on a real-time basis a user's emotional response to interactions with a particular app or web page?

As far as I know, Apple has not made any specific statements about whether facial capture data will be available to apps, except as a replacement for older iPhone's Touch ID function that allows users, among other things, to use Apple Pay or log into protected apps such as for mobile banking (which presumably will be able to be opened now with a look, instead of a touch). As we know, however, Apple does make other device specific information available to apps (e.g., geolocation), typically after a user expressly consents to such sharing and the app developer itself has expressly agreed to certain privacy practices as outlined in the Apple developer agreement.

In the case of facial captures, a number of legal principles would come into play. Some federal and state laws already treat biometric data, including facial imagery, as personally identifiable information for a variety of purposes. For example, the definition of "personal information" under COPPA (The Children's Online Privacy Protection Act) includes photos, videos, and audio recordings that contain a child's image or voice. Thus, in general, a service provider cannot collect or store images of children under 13 without prior verified parental consent. On the state level, a number of states in recent years have amended their breach notification statutes to include the unauthorized access to unique biometric data such as facial imagery (in conjunction with the disclosure of an individual's name) as a trigger for notification requirements. In addition, a number of states have also enacted biometric privacy laws, including the notorious Illinois law commonly known as BIPA, which generally imposes data security requirements on the storage of facial captures and other biometric information. And of course, internationally, under existing laws and the soon to be effective GDPR in Europe...well, don't get me started....

So, the answer to the question is, "We'll see." First, we have to see what Apple has to say about this. Will they make facial capture data available to apps? If so, what kind of prior user notification and consent will be needed? If not, will Face ID only be used by third-party apps to authenticate users and nothing more? Second, to the extent Apple agrees to make such data available, how will companies manage it? Will they be able to store it, and if so how will they comply with COPPA, BIPA, and all the other existing and emerging laws related to the capture and storage of biometric data, both domestically and internationally. How will they secure the data? What kinds of changes, if any, will be required to their technical infrastructure, privacy policies, data security policies, incident response policies, etc., etc., etc.?

The potential opportunities presented by the use of facial imagery are significant. If Face ID is reliable enough, users will feel more comfortable using it (as happened with iPhone's Touch ID fingerprint function) and it will spread to other devices and other industries. There are, however, numerous issues to be resolved. We are awaiting more word from Apple which will help us understand Face ID and allow us to advise on the most practical way to capitalize on these opportunities. Stay tuned!

Apple X's Face ID Feature Places Spotlight On Facial Recognition Technology, Raising Numerous Mobile Privacy And Data Usage Issues

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions