The Criminal Defense Blog


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The Washington Post reported that "A cache of records shared with The Washington Post reveals that agents are scanning millions of Americans’ faces without their knowledge or consent." "Agents with the Federal Bureau of Investigation and Immigration and Customs Enforcement have turned state driver’s license databases into a facial-recognition gold mine, scanning through millions of Americans’ photos without their knowledge or consent, newly released documents show." Does this data-mining by law enforcement amount to a search under the Fourth Amendment? If so, do citizens have an expectation of privacy when it comes to Facial Recognition Searches? 

A recent ABA commentary discssued the constitutional implications of Facial Recognition Technology. The Fourth Amendment prohibits an unlawful search of a place where a person has a reasonable expectation of privacy. In Katz v. United States, the Supreme Court announced a two-part test to determine whether a person has a reasonable expectation of privacy, which assesses (1) whether the person exhibited an actual, subjective expectation of privacy and (2) whether that expectation is one that society recognizes as reasonable. (389 U.S. 347 (1967).) The Katz test provides a framework for analyzing Fourth Amendment issues.

On June 22, 2018, the US Supreme Court decided Carpenter v. United States. (138 S. Ct. 2206 (2018).) In Carpenter, the Court ruled on whether a person’s expectation of privacy covered the records of historical cell phone data (historical CSLI), which could reveal the person’s physical location or movements. Relying on KatzCarpenter held that a person’s Fourth Amendment rights were violated when the government received historical CSLI from cell phone companies without first obtaining a search warrant. 

In light of Katz and Carpenter, Factial Recognition Technology (FRT) that is used on a limited, short-term basis with strictly public systems should not implicate the Fourth Amendment because an individual’s face is open to the public. (Katz, 389 U.S. at 351–52; United States v. Dionisio, 410 U.S. 1, 14 (1973). See, e.g., De Lillo, supra, at 282.) Nevertheless, legal arguments against the warrantless use of FRT can be made on a variety of issues, including that the technology can be used to track an individual’s movement over an extended period of time, First Amendment rights may be chilled, and the technology is not available for public use and may implicate the Fourth Amendment.

As for FRT, Carpenter suggests that an individual’s public movements captured by FRT in an isolated incident do not implicate the Fourth Amendment. However, the same individual’s public movements viewed using FRT over an extended timeframe could reveal intimate details about the individual’s personal life that may be found to amount to a Fourth Amendment search, even though everything took place in public. 

In addition to Fourth Amendment concern, the Washington Post also noted the possible danger of misidentification by law enforcement agents who rely on FRT. "The FBI said its system is 86 percent accurate at finding the right person if a search is able to generate a list of 50 possible matches, according to the GAO. But the FBI has not tested its system’s accuracy under conditions that are closer to normal, such as when a facial search returns only a few possible matches." But what about the dangers of wrongful identification and arrest of suspects? Civil rights advocates have said the inaccuracies of facial recognition pose a heightened danger of misidentification and false arrests. The software’s precision is highly dependent on a number of factors, including the lighting of a subject’s face and the quality of the image, and research has shown that the technology performs less accurately on people with darker skin."


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