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Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Notices
the future. Provision I of the proposed order prohibits Respondent from making misrepresentations related to the collection, use, disclosure, maintenance, or deletion of Covered Information as defined in the order;
consumers ability to control any of these actions; the extent to which Everalbum accesses or permits access to Covered Information; the extent, purpose, and duration of Everalbums retention of Covered Information after consumers deactivate their accounts; or the extent to which Everalbum otherwise protects the privacy, security, availability, confidentiality, or integrity of any Covered Information.
Part II of the proposed order requires Respondent to clearly and conspicuously disclose, and obtain consumers affirmative express consent for, all purposes for which it will use or share Users Biometric Information before using the information to create data needed for face recognition analysis or to develop face recognition models or algorithms.
Part III of the proposed order requires Respondent to delete A photos and videos of Ever app Users who requested deactivation of their accounts, B face recognition data that it created without obtaining Users affirmative express consent, and C models and algorithms it developed in whole or in part using images from Users photos.
Parts IV through VII of the proposed order are reporting and compliance provisions, which include recordkeeping requirements and provisions requiring Respondent to provide information or documents necessary for the Commission to monitor compliance. Part VIII of the proposed order states that the order will remain in effect for 20 years, with certain exceptions.
The purpose of this analysis is to aid public comment on the proposed order.
It is not intended to constitute an official interpretation of the complaint or proposed order, or to modify in any way the proposed orders terms.
By direction of the Commission.
April J. Tabor, Acting Secretary.

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Statement of Commissioner Rohit Chopra in the Matter of Everalbum, Inc.
Todays facial recognition technology is fundamentally flawed and reinforces harmful biases. I support efforts to enact moratoria or otherwise severely restrict its use. Until such time, it is critical that the FTC meaningfully enforce existing law to deprive wrongdoers of technologies they build through
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unlawful collection of Americans facial images and likenesses.
The case of Everalbum is a troubling illustration of just some of the problems with facial recognition. Everalbum operates a business line called Paravision, which developed and marketed facial recognition technology, including to clients in the security and air travel industries.1 The company enhanced their facial recognition technology by allegedly baiting consumers into using Ever, a free app that allowed users to store and modify photos.2
As outlined in the complaint, Everalbum made promises that users could choose not to have facial recognition technology applied to their images, and that users could delete the images and their account. In addition to those promises, Everalbum had clear evidence that many of the photo apps users did not want to be roped into facial recognition. The company broke its promises, which constitutes illegal deception according to the FTCs complaint. This matter and the FTCs proposed resolution are noteworthy for several reasons.
First, the FTCs proposed order requires Everalbum to forfeit the fruits of its deception. Specifically, the company must delete the facial recognition technologies enhanced by any improperly obtained photos.
Commissioners have previously voted to allow data protection law violators to retain algorithms and technologies that derive much of their value from illgotten data.3 This is an important course correction.
1 Paravision, https www.paravision.ai/ last visited on Jan. 4, 2020.
2 Compl., In the Matter of Everalbum, Inc., Commn File No. 1923172. This is not the only photo-sharing application that has drawn scrutiny for its ties to facial recognition and surveillance technology. Kashmir Hill & Aaron Krolik, How Photos of Your Kids Are Powering Surveillance Technology, N.Y. Times Oct. 11, 2019, https
www.nytimes.com/interactive/2019/10/11/
technology/flickr-facial-recognition.html.
3 The Commission voted 32 on a settlement with Google and YouTube that allowed the companies to retain algorithms and other technologies enhanced by illegally obtained data on children. Based on my analysis, the Commission also allowed Google and YouTube to profit from their conduct, even after paying a civil penalty. See Dissenting Statement of Commissioner Rohit Chopra In the Matter of Google LLC and YouTube, LLC, Commn File No. 1723083
Sep. 4, 2019, https www.ftc.gov/publicstatements/2019/09/statement-commissioner-rohitchopra-regarding-youtube. The Commission voted 32 on a settlement with Facebook to address unlawful facial recognition practices that violated a 2012 Commission order. Like the Google/YouTube settlement, Facebook was not required to forfeit any facial recognition or other related technologies. The settlement also provided an unusual immunity clause for senior executives, including Mark Zuckerberg and Sheryl Sandberg. See also Dissenting Statement of Commissioner Rohit
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Second, the settlement does not require the defendant to pay any penalty. This is unfortunate. To avoid this in the future, the FTC needs to take further steps to trigger penalties, damages, and other relief for facial recognition and data protection abuses.
Commissioners have voted to enter into scores of settlements that address deceptive practices regarding the collection, use, and sharing of personal data. There does not appear to be any meaningful dispute that these practices are illegal. However, since Commissioners have not restated this precedent into a rule under Section 18
of the FTC Act, we are unable to seek penalties and other relief for even the most egregious offenses when we first discover them.4
Finally, the Everalbum matter makes it clear why it is important to maintain states authority to protect personal data. Because the people of Illinois, Washington, and Texas passed laws related to facial recognition and biometric identifiers, Everalbum took greater care when it came to individuals in these states.5 The companys deception targeted Americans who live in states with no specific state law protections.
With the tsunami of data being collected on individuals, we need all hands on deck to keep these companies in check. State and local governments have rightfully taken steps to enact bans, moratoria, and other restrictions on the use of these technologies. While special interests are actively lobbying for federal legislation to delete state data protection laws, it will be important for Congress to resist these efforts. Broad federal preemption would severely undercut this multi-front approach and leave more consumers less protected.
It will be critical for the Commission, the states, and regulators around the globe to pursue additional enforcement actions to hold accountable providers of facial recognition technology who make Chopra In re Facebook, Inc., Commn File No.
1823109 Jul. 24, 2019, https www.ftc.gov/publicstatements/2019/07/dissenting-statementcommissioner-rohit-chopra-regarding-matterfacebook.
4 Statement of Commissioner Rohit Chopra Regarding the Report to Congress on Protecting Older Adults, Commn File No. P144400 Oct. 19, 2020, https www.ftc.gov/public-statements/2020/
10/statement-commissioner-rohit-chopra-regardingreport-congress-protecting; Rohit Chopra & Samuel A.A. Levine, The Case for Resurrecting the FTC
Acts Penalty Offense Authority Oct. 29, 2020, https papers.ssrn.com/sol3/papers.cfm?abstract_
id=3721256.
5 Compl., supra note 2.

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