Facial Recognition Technology: A Fourth Amendment Violation?

By: Riya Anchi

Published: 2/24/2020

Introduction

            Today, technology is prominently featured in almost every aspect of everyday life. However, the law has been struggling to keep up with the rapid advancements in technology. This article will explore the use of facial recognition technology and the legal issues that have emerged from its use. 

Background 

  1. What is facial recognition technology?

Facial recognition technology is a type of biometric technology.[1] According to the definition provided by the International Organization for Standardization, biometric recognition is the “automated recognition of individuals based on their biological and behavioural characteristics.”[2] Some common biometric recognition systems include finger imaging, voice authentication, facial recognition, and retinal scanning.[3] Facial recognition technology functions by creating a template. The template is created using measurements of various facial characteristics, such as the distance between the eyes, the width of the nose, the length of the jawline, and the shape of the cheekbones.[4] This template is then compared to pre-existing images in a database, for example the Department of Motor Vehicles database.[5]

  1. Who uses Facial Recognition Technology?

The FBI regularly uses facial recognition systems to identify individuals during the course of their investigations.[6] Additionally, several local law enforcement agencies in Los Angeles, San Diego, Chicago, and New York have also begun using this technology.[7]

Although facial recognition technology has traditionally been used by law enforcement agencies, in recent years, commercial interest in using facial recognition technologies has increased.[8] Facial recognition technology is now commonly employed in public places like corporate and government buildings, stadiums, and airports.[9] The technology is used to verify the authorization of individuals entering corporate buildings, to identify problematic gamblers in casinos, and by social media companies for their photo-tagging systems.[10]

One of the most common uses of facial recognition technology by social media companies is Facebook’s “tag suggestions.”[11] Facebook describes its facial recognition setting as follows:

“Face recognition is used to analyze the photos and videos we think you’re in on Facebook, such as your profile picture and photos and videos that you’ve been tagged in, to make a unique number for you, called a template. When you turn your face recognition setting on, we create your template and use it to compare to other photos, videos and other places where the camera is used (like live video) to recognize if you appear in that content.”[12] 

However, Facebook has some features that allow users to manage their facial recognition settings. For example, users have the option to turn the facial recognition settings off for their account, a user’s face template is not shared with third parties, and facial recognition is not available for users below the age of 18.[13]

III. Fourth Amendment Issues in the Use of Facial Recognition Technology

The Fourth Amendment protects individuals from unreasonable searches and seizures.[14] The United States Supreme Court established these protections in Katz v. United States.[15] Katz established that the Fourth Amendment protects legitimate or reasonable expectations of privacy where: (1) a person has exhibited an actual (subjective) expectation of privacy, and (2) the expectation is one that society is prepared to recognize as “reasonable.”[16] In the facial recognition context, the issue becomes: (1) whether people have an actual expectation of privacy in public places, and (2) whether the modern American society recognizes this expectation as reasonable. 

Another important Fourth Amendment case, Kyllo v. United States, concerns the use of a device that is not in general public use to conduct surveillance of a constitutionally protected area, such as a house.[17] In Kyllo, the government used a thermal imaging device on the street outside Kyllo’s home to discover that he was growing marijuana inside his house.[18] In Kyllo, the Supreme Court held that surveillance using such a sense-enhancing device that would previously not have been possible without physical intrusion, constitutes an unreasonable search under the Fourth Amendment.[19]

  1. The Accuracy of Facial Recognition Technology May be Questionable

Apart from the privacy concerns, there are also questions about the reliability of facial recognition technology. Tests have shown that facial recognition technology is less accurate for women and people of color.[20] This is only one of the many issues surrounding facial recognition technology that has led several cities, including San Francisco, Oakland, and Somerville, to ban the government’s use of the technology.[21]

Analysis

Facial recognition is principally based on visual surveillance. Visual surveillance has long been held not to fall within the scope of the Fourth Amendment.[22] Similarly, video surveillance is not a search under the Fourth Amendment because it captures what the naked eye observes.[23] Unlike the device used in Kyllo, video surveillance is not a sense-enhancing system. Therefore, it follows that facial recognition technology is not sense-enhancing because it is simply a form of visual surveillance. Hence, it is unlikely that people have an actual expectation of privacy in public places because they are aware that they can easily be seen by anyone around them. As a result, the first prong of the Katz test is satisfied.

Furthermore, it is also unlikely that society recognizes “the expectation of privacy from facial recognition technology in public places” as reasonable. Today, the use of video surveillance systems in public places is commonplace.[24] Most people are aware of the use of these surveillance systems.[25] It is improbable that people would not expect to be subjected to some form of video surveillance in public places. Because video surveillance is the basis of facial recognition, it is unlikely that society would view the expectation of privacy from the use of such technology as reasonable. Therefore, the second prong of the Katz test is also satisfied.

Conclusion

On one hand, facial recognition technology presents numerous benefits for law enforcement agencies, such as creating reliable evidence, enabling efficient investigations, and helping to accumulate data that allows law enforcement to react quickly and effectively.[26] On the other hand, there are valid concerns as to the accuracy of such technology.[27]

 An analysis of the Katz and Kyllo cases demonstrates that the use of facial recognition technology in public places does not result in an unreasonable search, and hence does not violate the Fourth Amendment. However, this is only true as long as facial recognition systems are used in public places. The use of facial recognition technology in other circumstances may potentially lead to a different analysis and conclusion.

The law must remain vigilant as developments in science and technology progress because the ramifications of the use of such emerging technology are not fully known. As technology continues to advance, it is up to courts and the legislature to monitor its boundaries and strike a balance between privacy interests and public safety. [28]

[1] Susan McCoy, Book Note, O’Big Brother Where Art Thou?: The Constitutional Use of Facial-Recognition Technology, 20 J. Marshall J. Computer & Info. L. 471, 473 (2002).

[2] What is Biometrics?, BiometricsInstitute.Org, https://www.biometricsinstitute.org/what-is-biometrics/ (last visited Feb. 9, 2020).

[3] Susan McCoy, Book Note, O’Big Brother Where Art Thou?: The Constitutional Use of Facial-Recognition Technology, 20 J. Marshall J. Computer & Info. L. 471, 473 (2002).

[4] Kevin Bonsor and Ryan Johnson, https://electronics.howstuffworks.com/gadgets/high-tech-gadgets/facial-recognition1.htm.

[5] Id.

[6] Mariko Hirose, Privacy in Public Spaces: The Reasonable Expectation of Privacy Against the Dragnet Use of Facial Recognition Technology, 49 Conn. L. Rev. 1593, 1597 (2017).

[7] Jon Schuppe, How Facial Recognition Became a Routine Policing Tool in America, Nbc News (May 11, 2019, 4.19 AM), https://www.nbcnews.com/news/us-news/how-facial-recognition-became-routine-policing-tool-america-n1004251.

[8] Rosie Brinckerhoff, Book Note, Social Network or Social Nightmare: How California Courts Can Prevent Facebook’s Frightening Foray into Facial Recognition Technology from Haunting Consumer Privacy Rights Forever, 70 Fed. Comm. L. J. 105, 113 (2018).

[9] Susan McCoy, Book Note, O’Big Brother Where Art Thou?: The Constitutional Use of Facial-Recognition Technology, 20 J. Marshall J. Computer & Info. L. 471, 475 (2002).

[10] Id. at 114. See also Kristine Hanmann and Rachel Smith, Facial Recognition Technology: Where Will It Take Us?, A.B.A. Crim. Just. Mag., (Spring 2019).

[11] Rosie Brinckerhoff, Book Note, Social Network or Social Nightmare: How California Courts Can Prevent Facebook’s Frightening Foray into Facial Recognition Technology from Haunting Consumer Privacy Rights Forever, 70 Fed. Comm. L.J. 105, 116 (2018).

[12] See generally Facebook, https://www.facebook.com/help/267689476916031.

[13] Id.

[14] National Constitution Center, https://constitutioncenter.org/interactive-constitution/amendment/amendment-iv

[15] Mariko Hirose, Privacy in Public Spaces: The Reasonable Expectation of Privacy Against the Dragnet Use of Facial Recognition Technology, 49 Conn. L. Rev., Sept. 2017, at 1593, 1601.

[16] Katz v. United States, 389 U.S. 347, 361 (1967).

[17] Kyllo v. United States, 533 U.S. 27, 29 (2011).

[18] Id. at 30.

[19] Id. at 40.

[20] Barry Friedman and Andrew Guthrie Ferguson, Here’s a Way Forward on Facial Recognition, N.Y.TIMES (Oct. 31, 2019), https://www.nytimes.com/2019/10/31/opinion/facial-recognition-regulation.html.

[21] Jason Tashea, As Facial Recognition Becomes More Ubiquitous, Some Government Slam on the Brakes, A.B.A. J., (Sept. 24, 2019), http://www.abajournal.com/web/article/facial-recog-bans.

[22] Susan McCoy, Book Note, O’Big Brother Where Art Thou?: The Constitutional Use of Facial-Recognition Technology, 20 J. Marshall J. Computer & Info. L. 471, 485 (2002).

[23] Id.

[24] Id. at 487.

[25] Id.

[26] Kristine Hanmann and Rachel Smith, Facial Recognition Technology: Where Will It Take Us?, A.B.A. Crim. Just. Mag., (Spring 2019).

[27] See Barry Friedman and Andrew Guthrie Ferguson, Here’s a Way Forward on Facial Recognition, N.Y.TIMES (Oct. 31, 2019), https://www.nytimes.com/2019/10/31/opinion/facial-recognition-regulation.html.

[28]  Kristine Hanmann and Rachel Smith, Facial Recognition Technology: Where Will It Take Us?, A.B.A. Crim. Just. Mag., (Spring 2019).

 

Riya Anchi is a second-year J.D. candidate at Penn State Law. Raised in Pune, India, she received her undergraduate degree in accounting from the University of Pune. Riya’s legal interests lie in corporate transactions and financial services regulations.