' Taylor Brook | MTTLR

Recognizing Your Privacy Rights: Facial Recognition Technology and Third Party Doctrine

Technology developers will never stop in their quest to create what they’ve determined to be the height of convenience for their customers. While it is admirable and exciting for a consumer to always be on the cusp of the newest in technology, it comes with bumps in the road in terms of privacy rights. The latest in technological convenience has come in the form of facial recognition. It can be used for many tasks: from opening smartphones, to checking in for airline flights, and checking out at restaurant kiosks. Amazon has even entered the game by rolling out a new “Rekognition” program that is marketed to consumers to use with their pictures and videos. The program is also available for companies to use to improve their customer’s experience or the company’s efficiency. Some suggested uses of the program include employee verification on ID badges and “sentiment analysis,” a program for retail stores that analyzes the emotions of individuals based on their facial expressions. Amazon’s list of customer reviews has big-name companies including Motorola Solutions, Family Search, and C-SPAN endorsing the product’s efficiency and accuracy. Also among the reviewers is the Washington County Sheriff Office. The Washington County Sheriff’s Office explained that by using the program they were able to upload their entire collection of suspect photos and analyze that data. This lead to a decrease in the time it takes to identify a suspect. They even claim the software allowed them to identify the suspect of a cold case leading to an arrest “through due process.” But that begs the question: what are the constitutional implications of government officials...

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Title VII states, “It shall be an unlawful employment practice for an employer . . . to print or publish . . . any notice or advertisement relating to employment . . . indicating any preference . . . based on race, color, religion, sex, or national origin.” This makes all employment ads targeting a protected classification illegal. This section was meant to effectively eliminate help wanted ads that included provisions stating minorities need not apply. As recruitment practices have evolved, employers have also come to abuse new tools at their disposal. Employers recruiting online can utilize Facebook services that filter future employees by race, gender, and age. In reaction to this form of modern covert discrimination, there have been several complaints filed with the Equal Employment Opportunity Commission (EEOC) and in federal court against employers alleging they have used these unlawful actions in their recruitment. For example, in Communication Workers of America v. T-Mobile, the Communication Workers of America (CWA) filed a class action lawsuit in the Northern District of California on behalf of a class of workers over the age of 40 against several employers including Amazon, Cox, and T-Mobile. The complaint alleges the employers refused to send their employment ads on Facebook to anyone over the age of 55, effectively discriminating on the basis of age. This would also violate the Age Discrimination in Employment Act. As in the previously discussed suit, Facebook had been involved in legal actions to the extent it was being used as a tool for the employers’ to discriminate. However, on September 18th, the American Civil Liberties Union (ACLU) and the...