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Harms resulting from the development and deployment of facial processingtechnologies (FPT) have been met with increasing controversy. Several statesand cities in the U.S. have banned the use of facial recognition by lawenforcement and governments, but FPT are still being developed and used in awide variety of contexts where they primarily are regulated by state biometricinformation privacy laws. Among these laws, the 2008 Illinois BiometricInformation Privacy Act (BIPA) has generated a significant amount oflitigation. Yet, with most BIPA lawsuits reaching settlements before there havebeen meaningful clarifications of relevant technical intricacies and legaldefinitions, there remains a great degree of uncertainty as to how exactly thislaw applies to FPT. What we have found through applications of BIPA in FPTlitigation so far, however, points to potential disconnects between technicaland legal communities. This paper analyzes what we know based on BIPA courtproceedings and highlights these points of tension: areas where the technicaloperationalization of BIPA may create unintended and undesirable incentives forFPT development, as well as areas where BIPA litigation can bring to light thelimitations of solely technical methods in achieving legal privacy values.These factors are relevant for (i) reasoning about biometric informationprivacy laws as a governing mechanism for FPT, (ii) assessing the potentialharms of FPT, and (iii) providing incentives for the mitigation of these harms.By illuminating these considerations, we hope to empower courts and lawmakersto take a more nuanced approach to regulating FPT and developers to betterunderstand privacy values in the current U.S. legal landscape.

Regulating Facial Processing Technologies: Tensions Between Legal and Technical Considerations in the Application of Illinois BIPA