Following a decision by a federal appeals court which found that Facebook had violated a state law limiting the collection of biometric identifiers including facial images, Facebook has changed the default setting for facial recognition. Beginning this week, facial recognition will be set to off by default for both new users and current users. EPIC filed an amicus brief in the biometric privacy case, Patel v. Facebook arguing that "the unlawful collection of an individual's biometric information in violation of the [state law] is an invasion of a legal right..." EPIC had repeatedly warned the Federal Trade Commission that Facebook's use of facial recognition threatened privacy. In comments on the original 2011 consent order, EPIC wrote the "Commission should require that Facebook cease creating facial recognition profiles without users' affirmative, opt-In consent." EPIC had filed a complaint with the FTC early in 2011 charging that the "secretive collection compilation and subsequent use of facial images for automated online identification adversely impacts consumers in the United States and around the world." EPIC filed similar complaints with the FTC about Facebook's use of facial recognition in 2016 and 2018 and provided detailed comments to the Commission in 2012, but the FTC simply failed to act on one of the most controversial business practices of the social media company.
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