Face the Facts, or Is the Face a Fact?: Biometric Privacy in Publicly Available Data

Recent advances in biometric technologies have caused a stir among the privacy community. Specifically, facial recognition technologies facilitated through data scraping practices have called into question the basic precepts we had around exercising biometric privacy. Yet, in spite of emerging case law on the permissibility of data scraping, comparatively little attention has been given to the privacy implications endemic to such practices. On the one hand, privacy proponents espouse the view that manipulating publicly available data from, for example, our social media profiles, derogates from users’ expectations around the kind of data they share with platforms (and the obligations such platforms have for protecting users from illicit uses of that data). On the other hand, free speech absolutists take the stance that, to the extent that biometric data is readily apparent in publicly available data, any restrictions on its secondary uses are prior restraints on speech. This Note proposes that these principles underlying privacy and free speech are compatible. Wholesale bans on biometric technologies misapprehend their legitimate uses for actually preserving privacy. Despite the overwhelming dearth of protections for biometric privacy across the United States, current battles to preserve the few regulations on these data practices illuminate the emerging frontier for privacy and free speech debates. As this Note concludes, existing regulations on biometric data practices withstand First Amendment scrutiny, and strike the appropriate balance between speech and privacy regulations