Rise of the Machines: Facial Recognition Technology Heralds Upswing in Litigation

A New Jersey man’s false-arrest suit is part of a growing wave of litigation over facial recognition technology, and observers say more suits are coming.

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Litigation over the Illinois facial recognition law saw an uptick after the Illinois Supreme Court ruled in January 2019 that plaintiffs don’t have to have experienced injuries or harm to bring suits under that law, said David Oberly, a lawyer at Blank Rome in Cincinnati who represents defendants in facial recognition suits.

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Enactment of additional regulations on the state and local levels has taken a back seat during the pandemic, but “the groundwork is there for a lot of changes at the state and municipal levels and at the federal level,” said Oberly of Blank Rome. At the federal level, preemption of local laws and whether to include a private right of action are sticking points, said Oberly. But the arrival of the Biden administration is likely to improve the chances of a federal law on facial recognition passing, said Oberly. What’s more, technology companies want to see regulation come from the federal government, he said.

“Right now there’s a huge patchwork of laws with different requirements. If our client operates in Texas, Washington and Illinois, they have to create three different policies,” Oberly said.

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“Rise of the Machines: Facial Recognition Technology Heralds Upswing in Litigation,” by Charles Toutant was published in the New Jersey Law Journal on January 15, 2021.