Regulating the use of facial recognition technology across borders: A comparative case analysis of the European Union, the United States, and China

Regulating the use of facial recognition technology (FRT) presents a Collingridge dilemma regarding the great demand for common legal principles to mediate the practical conflicts between privacy and efficiency, autonomy and authority, and safety and accountability. This study compares the enforcement by legitimate authorities in the European Union, the United States, and China of the laws and regulations applied in practical FRT cases and explores the fundamental principles and values manifested in these judgments and their results. The findings presented here indicate that (1) the E.U. regulations tend to move from downstream to upstream based on the notions of “privacy by design” and “privacy by default,” (2) the U.S. regulations are not limited to private contexts but tend also to target the (semi-)public sector, and (3) the Chinese regulations have been shifting from a practice represented by the phrase “nine dragons playing with a pearl” to a practice of “learning by doing”. Specifically, with respect to the determination of violations, the E.U. jurisprudence endorses deontological ethics and the U.S. jurisprudence a kind of universal egoism while the core FRT legislation in China valorizes utilitarianism. Overall, a top-down regulatory framework relating to FRT usage was apparent in the E.U. countries, a self-regulatory approach was observed in the United States, and a “presumption of fault” principle was manifested in China's process of assessing damages.