Regulating Facial Recognition Technology: A Taxonomy of Regulatory Schemata and First Amendment Challenges

Abstract

Abstract This article examines the patchwork of regulatory approaches policymakers have used to govern use of facial recognition technology (FRT). Without comprehensive federal legislation, state and local policymakers are left to fill the regulatory gap. The purpose of this article is twofold. First, it creates a taxonomy of the existing regulatory schemata governing uses of FRT. The authors’ systematic analysis of FRT regulatory approaches identified five main categories of policymaking options: (1) agents of use; (2) limitations on use; (3) accountability of use; (4) evaluation of use; and (5) enforcement of permitted use. Second, the authors analyze whether First Amendment protection of information as speech may serve as a barrier to any regulatory aspect of FRT. Building on the novel empirical framework of regulatory options, the authors examine which types of FRT regulations would likely survive a First Amendment challenge. Thus, this taxonomy of regulatory approaches, coupled with a First Amendment analysis, offers valuable insights for policymakers and scholars.