By: Scarlett L. Montenegro
On November 2, 2021, Meta, Facebook’s recently renamed parent company, announced that Facebook would no longer use its decade-old face recognition software, DeepFace. DeepFace is an artificial intelligence (“AI”) technology used to identify and suggest “tags” of people in uploaded photos on Facebook. Meta cited societal concerns as a factor behind its decision and said it would also delete the facial recognition data of over a billion individuals. This is a first for Meta, which, prior to changing its name, was fined a “record-breaking $5 billion” by the Federal Trade Commission (“FTC”) for misrepresenting consumers in its “tag suggestions,” among other deceptive practices. At first, privacy experts and activists who have long advocated for a complete ban of government use of facial recognition technology and federal regulation over the commercial use of this technology were thrilled at the implication this could have on other large tech companies and U.S. privacy protections. Michael Whitener, a technology transactions and data privacy partner at VLP Law Group, said that “other companies using or considering the use of facial recognition technologies are going to take a beat when they see a company like Facebook backing away. Facebook’s logic is compelling: given the uncertainties about the proper place of this technology in society, it’s best to rein in its use for now.”
Although Facebook does not sell its facial recognition software to third parties and only used it for the social media’s tagging feature, start-ups like Clearview AI use facial images from websites, including Facebook, to train its facial recognition software, which has been sold to several law enforcement departments. Clearview AI is a facial recognition application that scrapes images of people’s faces from all over the internet, to match them with photos of persons of interest. Clearview’s AI is trained on a database that has about 3 billion photos. The app has received several cease-and-desist letters from multiple of these social media platforms claiming that scraping their user’s information is not allowed under their terms of service. According to an internal document that was leaked from Clearview and reviewed by BuzzFeed in February of 2020, the CBP had already conducted 7,500 searches and ICE 8,000 on the app. Many immigrants, civil, and privacy rights organizations have teamed up to pressure the Department of Homeland Security to release information about their use of Clearview and also to discontinue the use of the app due to algorithmic bias and the founder’s ties to white nationalist organizations.
Meta made this announcement immediately after it finished putting out the fire ignited by whistleblower and former Facebook data scientist, Frances Haugen. Haugen leaked thousands of confidential documents alleging the company cares more about its profits than public safety, resulting in congressional hearings and regulatory inquiries. Social media giants such as Snapchat, TikTok, and YouTube even chose to distance themselves from Facebook in recent congressional hearings about social media safety for children and teens. Additionally, before changing its name to Meta, Facebook reached a $650 million class-action settlement for its “tag suggestions” feature. In Patel v. Facebook, Inc., the Ninth Circuit found that Facebook violated the Illinois Biometric Information Protection Act (“BIPA”) “by collecting, using, and (a “scan” of “face geometry”) from their photos without obtaining a written release and without establishing a compliant retention schedule” harming individual’s privacy interests.
At first glance, Meta’s announcement to get rid of Facebook’s facial recognition software seems like the company is finally listening to the concerns of privacy advocates and taking the necessary steps to protect individuals’ privacy rights. However, Meta failed to share in their November 2nd announcement that although Facebook is no longer using DeepFace, Meta still is. Meta’s spokesperson Jason Grosse, told Recode that the company’s announcement does not apply to its metaverse products, the company’s new primary focus. Metaverse will be a digital space of virtual and augmented reality where people interact as avatars. Grosse told Recode that DeepFace “has the potential to enable positive use cases in the future that maintain privacy, control, and transparency, and it’s an approach we’ll continue to explore as we consider how our future computing platforms and devices can best serve people’s needs.”
While it is a big deal for a social network like Facebook to announce it will no longer use facial recognition technology, it appears Meta lied by omission. Especially when the announcement cited growing social concerns and a current lack of regulation and “clear rules” as driving factors in the decision to shut down its facial recognition system. This means that users of metaverse will be exposing their biometric data as they begin to engage with Meta’s new system, under a false impression that Meta is not collecting their data. Rather than deflecting from its recent mishaps — loss of billions of dollars and congressional hearings — in celebrating Facebook’s announcement to be “socially responsible,” Meta should focus on how it will actually protect individuals’ biometric data moving forward. In the meantime, we need Congress and the Senate to get to work and give Meta what they asked for . . . strong privacy laws with “clear rules.”
 See Jerome Pesenti, An Update On Our Use of Face Recognition, Meta (Nov. 2, 2021), https://about.fb.com/news/2021/11/update-on-use-of-face-recognition/ (announcing Facebook’s new facial recognition policies).
 See id.
 See Press Release, FTC Imposes $5 Billion Penalty and Sweeping New Privacy Restrictions on Facebook, Federal Trade Commission (July 21, 2019), https://www.ftc.gov/news-events/press-releases/2019/07/ftc-imposes-5-billion-penalty-sweeping-new-privacy-restrictions (announcing the settlement order against Facebook).
 See Matthew Guariglia, Face Recognition Is So Toxic, Facebook Is Dumping It, Electronic Frontier Foundation(Nov. 2, 2021), https://www.eff.org/deeplinks/2021/11/face-recognition-so-toxic-facebook-dumping-it (stating that Meta’s announcement is “one very large domino in the continued fight against face recognition technology”). See also Jennifer Bryant, Facebook to close its facial recognition system, but will it start a paradigm shift?, IAPP (Nov. 3, 2021), https://iapp.org/news/a/facebook-to-close-its-facial-recognition-system-but-will-it-start-a-paradigm-shift/; Kashmir Hill & Ryan Mac, Facebook, Citing Societal Concerns, Plans to Shut Down Facial Recognition System, NY Times (Nov. 2, 2021), https://www.nytimes.com/2021/11/02/technology/facebook-facial-recognition.html; Natasha Singer & Cade Metz, Many Facial-Recognition Systems Are Biased, Says U.S. Study, NY Times (Dec. 19, 2019), https://www.nytimes.com/2019/12/19/technology/facial-recognition-bias.html (noting that the majority of facial recognition systems are biased and are more likely to falsely identify African Americans compared to Caucasians).
 See Bryant, supra note 5 (indicating that Meta’s decision may create a “paradigm shift, until appropriate regulatory controls can be put in place”).
 See Jon Porter, Facebook and LinkedIn are Latest to Demand Clearview Stop Scraping Images for Facial Recognition Tech, The Verge (Feb. 6, 2020, 3:32 PM), https://www.theverge.com/2020/2/6/21126063/facebook-clearview-ai-image-scraping-facial-recognition-database-terms-of-service-twitter-youtube (explaining that Facebook is only one of many online platforms used for this purpose). Note that because Facebook does not sell the DeepFace software to third parties, it has no income to lose in scrapping it.
 Ryan Mac et al., Clearview’s Facial Recognition App Has Been Used By The Justice Department, ICE, Macy’s, Walmart, And The NBA, BuzzFeed (Feb. 27, 2020 11:37 PM), https://www.buzzfeednews.com/article/ryanmac/clearview-ai-fbi-ice-global-law-enforcement.
 See id.
 Chris Mills Rodrigo, Pressure Mounts On DHS To Stop Using Clearview AI Facial Recognition, The Hill (April 19, 2021, 09:00 AM), https://thehill.com/policy/technology/548932-pressure-mounts-on-dhs-to-stop-using-clearview-ai-facial-recognition.
 See Mac, supra note 8.
 See Rodrigo, supra note 10; see also Joy Buolamwini & Timnit Gebru, Gender Shades: Intersectional Accuracy Disparities in Commercial Gender Classification, Conference on Fairness, Accountability, and Transparency, 1, 11-12 (2018), http://proceedings.mlr.press/v81/buolamwini18a/buolamwini18a.pdf (noting that facial recognition algorithms disproportionally misidentify Black people and women).
 Hill & Mac, supra note 5 (discussing that the documents leaked by Haugen demonstrate Facebook’s awareness on how it enabled the “spread of misinformation, hate speech, and violence-inciting content”); Emily Birnbaum, Facebook’s meta-problem on Capitol Hill, Politico (Oct. 29, 2021, 4:30 AM), https://www.politico.com/news/2021/10/29/facebook-capitol-hill-problem-517474 (suggesting that Haugen’s leak endangered Facebook’s reputation and left the company in desperate need to salvage it).
 See Birnbaum, supra note 8; Barbara Ortutay & David Klepper, Facebook Whistleblower Testifies: Five Highlights, AP News (Oct. 5, 2021), https://apnews.com/article/facebook-frances-haugen-congress-testimony-af86188337d25b179153b973754b71a4 (recounting how both Republican and Democrat senators at the hearing before the Senate Commerce Subcommittee on Consumer Protection expressed that Haugen’s revelations demonstrate the need to pass new regulations on social media platforms).
 Olivia Solon, Social Media Giants Try to Distance Themselves from Facebook, NBC News (Oct. 26, 2021, 3:33 PM), https://www.nbcnews.com/tech/social-media-giants-try-distance-facebook-rcna3831 (describing how Snapchat, TikTok, and YouTube distinguished themselves from Facebook and Instagram during the hearing).
 Patel v. Facebook, Inc., 932 F.3d 1264, 1268, 1276 (9th Cir. 2019) (determining a class action claim through the Illinois Biometric Information Protection Act was permissible).
 See id. (noting that section 15(a) and (b) of the BIPA states that private companies collecting and using biometric identifiers and information must provide to the public a written policy establishing a retention schedule and guidelines about destroying the biometric identifier, it must also first inform the customer in writing that the biometric information is being collected as well as its purpose and length term).
 Note that facial recognition is not a feature on Instagram.
 Rebecca Heilweil, Facebook is Backing Away from Facial Recognition. Meta Isn’t., Vox (Nov. 3, 2021, 2:20 PM), https://www.vox.com/recode/22761598/facebook-facial-recognition-meta.
 Press Release, Introducing Meta: A Social Technology Company (Oct. 28, 2021), https://about.fb.com/news/2021/10/facebook-company-is-now-meta/; see also Heilweil, supra note 14 (explaining that Meta is also developing a new virtual reality headset that tracks peoples’ eye and facial movements, Ray-Ban smart glasses that record surroundings, and Reality Labs which research biometrics).
 Heilweil, supra note 14 (recounting that Grosse also said, “For any potential future applications of technologies like this, we’ll continue to be public about intended use, how people can have control over these systems and their personal data, and how we’re living up to our responsible innovation framework”).
 Pesenti, supra note 1 (noting the emphasis Meta placed on social policy factors influencing its decision).