
In this era of out-of-control crime, certain retail chains and big-box stores are now using surveillance technology in an effort to address the massive amount of theft that has been taking place.
Up until recently, folks were generally unaware that such surveillance methods were being utilized by establishments. But as word has spread, so has public concern. And for good reason.
Newly applied surveillance techniques now include the use of facial recognition devices, which quietly scan and store biometric data on customers as they shop for everyday groceries and household supplies.
Biometric data are comprised of unique physical and behavioral characteristics that collectively determine each individual’s personal identity.
The biometric data that are being collected include, among other things, unique facial geometry, iris or retina patterns, hand geometry, behavioral traits, and even voiceprints.
This type of data is fundamentally different from personal information that was collected in the past. These data are processed electronically and are highly sensitive due to their uniqueness and permanence.
Unlike a password or credit card information, which after suffering a security breach can be changed, biometric information is generally a fixed measure. As such, once data are collected and stored, the information contained within is fixed as well, meaning it cannot be revoked or altered.
The primary type of biometric data currently being collected falls under the category of facial recognition, i.e., the use of technology to scan the face of an individual via an in-store device.
The in-store device collects and stores the one-and-only facial geometry of a distinct individual, creating a kind of “template” or mathematical representation of the individual’s face.
Use of this kind of technology raises major privacy concerns, particularly due to its ability to scan individuals en masse, and do so without first obtaining consent.
Signs displayed at the entrances of some Wegmans grocery store outlets located in New York City now disclose, as per the local law, that specified data collection is being conducted on the premises.
However, in many other retail establishments across the country, shoppers are not being forewarned.
Things are happening quickly, though. Some high-profile retailers, including Walmart, Target, and Home Depot, are currently facing lawsuits for practices similar to the ones implemented at Wegmans.
Certain companies have attempted to justify biometric data collection, claiming that the tool enhances overall security measures.
However, to legal scholars and average folks alike, the risks to privacy, the possible misuse of personal data, and the potential violation of civil liberties certainly appear to outweigh the commercial benefit that retailers are seeking.
Entering a store is hardly an agreement to be the subject of biometric surveillance. In most jurisdictions, customers have no practical way to refuse.
Consent, within the retail context, is an illusion.
With regard to regulation, it is primarily effectuated in the United States at a state and local level, with no comprehensive federal law governing private or governmental use of facial recognition and similar technologies.
Additionally, there is no federal statute that specifically regulates facial recognition or biometric data collection by either private entities or for governmental use.
The Federal Trade Commission has warned of inherent harms in biometric data collection technologies.
Some states are moving to ban retail facial recognition outright, recognizing that people shouldn’t have to surrender their biometric privacy for merely wanting or needing to shop for groceries.
Even in jurisdictions where disclosure is required, such as New York City, the practice of biometric data collection persists, without any affirmative permission from customers.
A number of state laws have led to lawsuits against retailers for collecting data without having obtained informed consent. However, the patchwork legal reality in the United States has left far too many Americans unprotected, basically allowing companies to treat public spaces as data-mining operations.
Aside from the privacy issue, these systems allow for deeper intrusions. For example, the biometric data can be used for what is known as “surveillance pricing,” where retailers track behavior such as the length of time one lingers in a certain aisle in order to charge an individual more money, based on a perceived willingness to pay.
Facial recognition technology also has the capacity to analyze emotions or demographics for the purposes of targeted marketing, a kind of shopping profiling, if you will.
It is my legal as well as my personal opinion that the time has come to ban altogether the practice of biometric surveillance in retail spaces.
While we wait for this to happen, here’s an idea:
All like-minded shoppers unite, and with what privacy we still have left we take our faces elsewhere.
Are you in?
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