IEEE Technology and Society Magazine - December 2021 - 93

FRT training datasets [29]. Indeed, some private
companies are choosing not to deploy FRT at all
[56]. Such behavior, where firms make decisions on
their own, should be encouraged. Soft law allows
this diversity of responses.
Education
Educational efforts can shape the adoption and
use of FRT. When Apple incorporated FRT in their
iPhone X in 2017, consistent with its posture as a
privacy-conscious brand, the company addressed
privacy concerns by explaining to users that the
identification data is stored locally on the phone and
not shared with Apple. The feature is now widely
used and little commented on.
Labeling
Labeling of FRT deployment offers another
potential soft law approach. Closed circuit television
(CCTV) monitoring systems offer a relevant
example for how FRT could be deployed in physical
commercial settings. In retail settings, CCTV
systems are often labeled to deter crime, but also to
serve the purpose of notifying consumers that they
are under surveillance. Labeling retail FRT uses
would serve this dual purpose as well. Consumer
products like Nest, Arlo, and others have democratized
video monitoring systems as well as labeling
practices. These products and local promotional
programs include stickers that can be affixed to
windows or walls notifying or warning individuals
of the camera system. Such notifications are suggested
and not required. Government mandates
could potentially require labeling by firms, services,
or products that use FRT, but given that there
are often other advantages to labeling beyond consumer
disclosure, a mandate is probably unnecessary.
For consumer uses, government mandates
could be unconstitutional and certainly unenforceable
at scale. Soft law, norms-based incentives like
labeling may be the most viable approach.
Voluntary standards
Private associations, companies, and government
entities can co-develop voluntary standards, best
practices, and guidelines to govern the deployment
of commercial FRT. We have already seen examples.
Private associations like the IEEE Standards Association
and the Security Industry Association (SIA) have
developed standards [57], [58]. So have individual
December 2021
companies like Google and Microsoft [54], [55].
Each of these organizations made their standards
available to the public. Finally, coalitions, like the
Partnership on AI which includes 96 organizations,
formed specifically to develop guidelines on the use
of FRT [59].
Not all such efforts generate consensus results.
From 2013 to 2016, the National Telecommunications
and Information Administration (NTIA), a
government entity, convened a cross section of government,
industry, academic, and consumer groups
to develop a " Privacy Best Practice Recommendations "
document for the use of commercial FRT [60],
[61]. That process ended in a split between advocacy
groups and industry associations.
Private certification
Private third-party validators or certification companies
could be one part of a nascent set of solutions
to mitigate bias risks. For example, private electronics
manufacturers contract with third-party product certification
companies like UL to stress test consumer
devices like plug-in air fresheners and toasters. Once
the devices pass these stress tests, UL provides its
stamp of approval to the product. Although testing
the products is neither required by law nor funded by
governments, it is required for some government benefits
and has become a highly valued and respected
validator of consumer products. A UL-style system
could be one way of validating FRT systems before
deployment, especially during the first wave of the
technology. Indeed, a third-party validator may be the
only way a company could re-build consumer trust in
its FRT if something goes wrong.
Public pressure campaigns
Public pressure and backlash against commercial
FRT deployment and public scrutiny are effective
means of soft law governance. The Rite-Aid example
described earlier demonstrates how public scrutiny
and pressure can motivate companies to use
FRT responsibly or eliminate its use all together. As
another example, kiosks ostensibly for fan photos at
a Taylor Swift concert in fact used FRT to identify
known stalkers. A Rolling Stone article exposed the
use of the technology, forcing the contractor that
worked with Swift's security detail to publish a series
of blog posts explaining how the technology was
used and seeking to address privacy, data security,
and other concerns [20].
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