The record favours private suits
EPIC's overview of how privacy laws actually get enforced makes the case that private causes of action have proved more capable of deterring abusive biometric practices than regulators, who move predictably and can be pressured. The evidence for that is not subtle. Statutes carrying a private right of action have produced settlements large enough to appear on balance sheets and have caused at least one facial recognition company to withdraw from an entire market segment.
We think that reading is right, and it is the reason we spend so little time hoping a regulator will solve this on its own.
The mechanism requires a defendant worth suing
Look at what those cases have in common. In every one, the collector was a company. It had assets, a business model that depended on the practice, insurers, counsel and a share price. Deterrence worked because the defendant had something to lose and a decision-maker who could stop.
Now apply it to a person who bought a pair of glasses. No assets worth pursuing, no business model, no scale, and a defendant a jury would probably find sympathetic. Multiply that by millions of wearers and the theory does not scale down. It disappears. Even a plaintiff with perfect knowledge of what happened to them faces a choice between suing an individual for a sum that will not cover filing costs and suing nobody at all.
Point the liability upstream
Our position is that liability for capture of non-consenting parties should attach to the party that shipped the capability, not to the person who used it. The manufacturer chose to include a camera, chose the indicator, chose whether audio runs, chose what leaves the device. Those are the decisions that determine how the fleet behaves.
We are aware this is the hard version. Assigning liability to the maker of a general-purpose device is exactly where courts have historically refused to go, for reasons that are not stupid. A camera has lawful uses and a manufacturer does not point it. The counterargument is that the design choices we listed are not neutral, and the party who made them is the only one in the chain who could have made them differently.