On May 18, 2023, the Federal Trade Commission (the “FTC”) issued a policy statement on the use of biometric information under its regulatory powers in Section 5 of the FTC Act (the “Statement”). The Statement is the strongest message the FTC has ever issued regarding how certain uses of biometric technology may, depending on the circumstances, constitute unfair and deceptive trade practices under Section 5.

The Statement provides significant insight into the FTC’s shifting priorities and focus on the regulation of the use of biometric technology, a topic that so far has been regulated by state and local law – or not at all. Companies should take heed of the FTC’s guidance for purposes of understanding potential exposure not only at the federal and state regulatory level but also in the form of potential civil lawsuits under state unfair and deceptive trade practice statutes.Continue Reading The FTC Expands Its Regulatory Watch Over the Use of Biometric Technology

On May 3, 2023, Utah’s Online Pornography Viewing Age Requirements Act (the “Act”) went into effect. The Act states that website operators must require internet users to prove they are eighteen years of age or older through a “digitized identification card” or third-party age-verification service when accessing websites containing “pornography or other materials harmful to minors.” In other words, to access adult websites in Utah, users must either upload their driver’s license (or other state-issued identification) or subject themselves to third-party age verification through tools such as biometric scanning. Simply clicking “I am 18 or older” is no longer sufficient with this legislation; an individual must now give personally identifiable information, including in some cases, a biometric face scan.Continue Reading Porn, Privacy & Protecting Kids:  States Seek to Balance Individual Rights and Business Interests in New Online Age Verification Laws

This week Meta, formerly known as Facebook, announced that it has disabled augmented reality effects, including filters and avatars, for its users in Texas and Illinois, citing state facial recognition laws.  Meta says that users in those states will see a “temporarily unavailable” message when accessing such features across Facebook, Messenger, Instagram, and Portal.  This decision comes at a time when the Illinois Biometric Information Privacy Act (BIPA) continues to wreak havoc on Illinois businesses, and just months after Texas Attorney General Ken Patton filed a lawsuit against Meta claiming the company misused facial recognition technology.  Denying any wrongdoing, Meta released a statement justifying the decision as a measure to avoid “meritless and distracting litigation”:

The technology we use to power augmented reality effects like avatars and filters is not facial recognition or any technology covered by the Texas and Illinois laws, and is not used to identify anyone.  Nevertheless, we are taking this step to prevent meritless and distracting litigation under laws in these two states based on a mischaracterization of how our features work. We remain committed to delivering AR experiences that people love, and that a diverse roster of creators use to grow their businesses, without needless friction or confusion.Continue Reading A Social Media Influencer’s Nightmare – Fun Filters on Instagram and Facebook Disabled in Illinois and Texas