To Be a Face in the Crowd: Surveillance, Facial Recognition, and a Right to Obscurity

We find ourselves on the cusp of a radically altered privacy landscape as facial recognition technology is applied to our already extensive video surveillance infrastructure as well as to body cameras worn by the police and cameras deployed on drones. The technological ability via facial recognition to establish aggregate profiles of individuals based upon their observed movements, behaviors, preferences, and associations is alarming. In addition, the fact that this technology can identify every individual who participates in political protests or who attends religious services or political meetings is extremely worrying. In light of these two possibilities, Jake Laperruque has advocated for legal restrictions on facial recognition technology so as to protect our ‘right to obscurity’. This right to obscurity is supposed to protect, in some measure, our ability to remain a nameless face in the crowd. Insofar as the aim is to obscure individuals’ identity while in public, a supposed right to obscurity might strike many as being entirely distinct from a right to privacy which is conventionally assumed to restrict access to our nonpublic, intimate activities. Whether the concerns raised by these two uses of facial recognition technology amount to a violation of a right to privacy, or a violation of a right to obscurity, or fails to amount to a rights violation at all depends both upon what values or interests are threatened by this technology and what theory of privacy one accepts. In Part I, I detail what values and interests are threatened by the widespread use of facial recognition in video surveillance within society. For the case of amassing detailed, aggregate profiles of individuals, I argue that the interest under threat is one that coincides with many conventional theories of privacy. Hence, even if one is skeptical that a right to privacy can shield our public activities, moral or legal claims against such profiling is at minimum a close cousin to a right to privacy. In contrast, I show that the interests in need of protection when considering the use of facial recognition to catalog protesters, or individuals attending religious services or political meetings, falls beyond the typical domain of privacy protections. In Section II, after opposing theories of privacy are considered in light of the novel problems raised by the use of facial recognition in video surveillance, I conclude that we need to articulate a novel right to obscurity that is distinct from a right to privacy in order to address the chilling effects on basic political liberties caused by cataloging protesters and religious observers.