The technology available to law enforcement tends to advance at a much faster rate than the laws that check overreach and abuses by police and prosecutors. By the time the courts have addressed how certain technologies fit with the various protections of the Bill of Rights, a new technology is available that creates new concerns. Biometric technology, which enables the identification of individuals based on unique characteristics such as DNA, fingerprints, or even the shapes of people’s faces, comes with many concerns for people’s Fourth Amendment rights. Facial recognition software (FRS) is now used by both law enforcement and the private sector for a variety of purposes, many of which pose problems not only because of privacy issues, but also because of the risk that the software will make an incorrect identification.
The concern that FRS undermines Fourth Amendment protections against unreasonable searches and seizures is not new, as evidenced by a law journal note published over a decade ago. Nguyen, Alexander T., “Here’s Looking at You, Kid: Has Face-Recognition Technology Completely Outflanked the Fourth Amendment?” 7 Va. J. L. & Tech. 2 (2002) (PDF file). Courts have generally held that police may use technology that enhances what individual law enforcement investigators could see on their own, such as cameras used in aerial surveillance, Dow Chemical Co. v. United States, 476 U.S. 227 (1986), or a flashlight used “to illuminate a darkened area,” Texas v. Brown, 460 U.S. 730, 740 (1983). The concern, according to the note, arises when technology replaces an investigator’s senses rather than merely enhancing them. Nguyen at 12, citing Kyllo v. United States, 533 U.S. 27 (2001).
Most FRS only uses photographs taken in public places, and the general rule for some time has been that people have no reasonable expectation of privacy in public. The Supreme Court has also held, however, that people should be free “from arbitrary surveillance by their government.” Nguyen at 18, quoting Dow Chemical, 476 U.S. at 240. The problem with FRS, from that point of view, is that it “subjects everyone, including innocent citizens, to indiscriminate scrutiny.” Id. [emphasis in original.]
The U.S. Department of Homeland Security (DHS) conducted a pilot program using FRS and iris recognition software (IRS) at Dulles International Airport in the Washington DC area, and it announced in early 2015 that it will expand its use of these technologies at Border Patrol stations along or near the U.S.-Mexico border, including in Texas. DHS has compiled a database known as IDENT, which reportedly contains over 170 million facial images and fingerprints.
False positive identifications are one major concern that people involved in the DHS program seem to acknowledge but also minimize. A University of Texas-El Paso doctoral student working on the program stated that “the fact the computer says someone is a terrorist is not proof that you are a terrorist.” This is technically true, but it is little comfort to the person wrongfully arrested for suspected terrorism based solely on the word of a computer.
These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.
If you are facing charges for an alleged offense, you should consult with a knowledgeable and experienced criminal defense lawyer who can help you put on the best possible defense. Michael J. Brown has fought for the rights of defendants in west Texas criminal cases for more than 20 years. To schedule a confidential consultation to see how we can help you, contact us online or at (432) 687-5157 today.
More Blog Posts:
Police Use of Surveillance Technology Without Warrants Prompts Court Challenges, Legislation, Texas Criminal Lawyer Blog, May 15, 2015
Court Rules that State May Compel Fingerprint, but Not Passcode, Access to Cell Phone, Texas Criminal Lawyer Blog, January 8, 2015
Use of Facial Recognition Software and Other Biometric Technologies by Police Raise Fourth Amendment, Privacy Concerns, Texas Criminal Lawyer Blog, June 26, 2014.