Facial Recognition and the Fourth Amendment

Tonight, I talk about facial recognition technology and the Fourth Amendment.

Law enforcement is already using facial recognition in some contexts, more than people realize.  [“Surveilling in Secret”, Cato Policy Report, March/April 2018 at p. 9]

In some places, when the police stop someone, they take a picture on the spot and identify the person with a smartphone app that searches against driver’s license photos and other picture databases. Law enforcement now has access to the driver’s license photos of 119 million people in 30 states, more than half of all American adults. 

Police in some places also save all mugshots in facial recognition databases for future searches. Or they take stills from surveillance camera video or cell phone video and run database searches on them. 

But real-time Identification is the most problematic scenario.  Police are getting more interested in using video systems to immediately identify people walking by on the street, or faces in a crowd. Maybe they’re looking for somebody specific, but imagine if we had police doing this across the street from our Tea Party rallies.  Chilling effect on the Tea Party?  You bet.  The Baltimore County police department reportedly uses facial recognition at public protests.  

Critics worry that this technology will have a larger impact on blacks because, proportionally speaking, there are more mugshots of black people. Critics also worry that these systems aren’t very accurate and identify the wrong people in too many cases - one out of seven, the FBI found.  The systems are even less accurate when it comes to blacks, women, and young people. Imagine the number of mistakes that will be made if schools or law enforcement take facial recognition a step further and hook it up to machine algorithms that claim to be able to predict future dangerous behavior.   How would you like to be caught up in that just because you look grumpy that day?

A third concern is that there are no comprehensive state or federal laws governing the use of facial recognition technology in law enforcement.  Few law enforcement agencies even have policies restricting the use of facial recognition to certain crimes, or prohibiting its use where there is no articulable suspicion, or preventing it from being used when the First Amendment is involved. 

The law is way behind technology in this area, and just beginning to come to grips with the issue.  There were House hearings, and state legislators have started to look at the issue in Vermont, Maryland, and New York. 

Lots of legal questions will have to be decided. For example, does facial recognition constitute a ‘search’ that triggers Fourth Amendment protection?  Some argue it does.  What is the legal standard of suspicion police must meet before using facial recognition technology?  Last term in the Carpenter case, the Supreme Court ruled that a warrant must be obtained before a person can be tracked by their cell phone.  Will Carpenter be read more broadly to prevent surveillance of an individual’s activity in public without a warrant?  Does it matter whether the ‘private property’ or ‘reasonable expectation of privacy’ theory of the Fourth Amendment is used?  Will the Court hold the line against mass surveillance without articulable suspicion?  Finally, given all the inaccurate results produced by facial recognition technology, will false positives have to be turned over as exculpatory evidence in criminal trials? 

The law better hurry up.  Facial recognition is already in use in the United Kingdom for police body-cameras and dash cams.  Also, we don’t want to end up like Russia, where facial recognition is used to crack down on anti-government protesters, or like China, which has so many cameras and has deployed so much facial recognition capability that authorities can find you within minutes of you walking out your front door.  But it’s also true that facial recognition technology has been dropped already, by some police departments, because of complaints and controversies, and maybe that’s not always a good thing, either.  Stay tuned - this issue is just getting started.