Use of Facial Recognition Technology for Medical Purposes: Balancing Privacy with Innovation

Abstract

Imagine applying for a job, and as part of your application process, your prospective employer asks for a photograph. You, as an eager candidate, comply with the request and, unbeknownst to you, the employer runs your picture through a software program that scans you for any common genetic diseases and that estimates your longevity. Alas, your face indicates that you may die young. No job for you. Although this sounds like science fiction, we may not be that far offfrom this scenario. In June 2014, scientists from Oxford reported that they have developed a facial recognition program that uses ordinary family photos to help diagnose rare genetic conditions. Part II of this Article describes the potential applications of facial recognition technology in medicine that have recently been explored, highlighting the recent software that may be used for genetic screening. Part III delves into the heightened need for privacy when dealing with genetic conditions and discusses an individual's right not to know about their genetic predispositions. Part IV discusses the history of facial recognition technology in the United States and how it has been monitored and regulated. This Part concludes that the current and proposed regulatory regime for facial recognition technology is not well suited for medical applications of such technology. Part V examines whether health-related legislation, such as the Health Insurance Portability and Accountability Act of 1996 (HIPPA), the Genetic Information Nondiscrimination Act (GINA), the Food, Drug, and Cosmetic Act (FDCA), or the American with Disabilities Act (ADA), provides adequate privacy protection from software that uses facial recognition to screen for diseases or health and concludes that they do not. Finally, Part VI outlines what kinds of restrictions are needed on the use of this technology to protect patient's privacy. Such restrictions could be located within GINA or ADA or could be part of a comprehensive regulation on facial recognition technology in general. Whichever form it takes, such protections are needed to ensure that what could be a very helpful technology is not used to discriminate against individuals or to reveal information to a person who may not seek such knowledge.