Use of Facial Recognition Software and Other Biometric Technologies by Police Raise Fourth Amendment, Privacy Concerns

Seattle, Washington recently became yet another American city to obtain facial recognition software (FRS) for its police force. This type of software, along with other types of biometric technology, analyzes video footage and still images of people and compares them to databases of individuals known to law enforcement. The impact on privacy and Fourth Amendment rights is far from clear. Some recent court cases illustrate some potential concerns, and privacy advocates have expressed concerns regarding misuse and abuse of the technology.

FRS is just one type of technology in the broader category of biometrics, which can identify individuals based on a wide range of unique characteristics like DNA, fingerprints, retinas, or voice patterns. FRS measures certain distances on people’s faces, such as from the tip of the nose to the chin. It then compares these measurements to databases of photographs. A spokesperson for the Seattle Police Department says that their FRS will use a database of mugshots.

Government agencies and private corporations are amassing ever-larger databases of biometric data. The U.S. State Department has what may be the largest such database in the world, with over 75 million photographs of people. The massive amount of information made available to law enforcement makes abuse, such as “fishing expeditions” that randomly select unknowing individuals for scrutiny, seem almost inevitable. Seattle has already been the site of a large-scale program intended to analyze surveillance footage outside of the context of any specific criminal investigation.

A well-known concern with FRS is the risk of false positives, meaning that FRS will match a person’s picture to someone else. A February 2014 court case indicates that courts are at least aware of this risk. Matter of Milford, 2014 NY Slip Op 50167(U). After FRS matched a person with a rejected 1998 driver’s license application, the New York Department of Motor Vehicles suspended the appellant’s license, accusing him of lying on his application. The court transferred the case to the Appellate Division to determine whether the appellant had produced “substantial evidence” that he was not the individual in the 1998 application. This suggests that much of the burden still rests on the innocent person to prove that they are not who FRS says they are.

A California appellate court held that a “cold hit” from a DNA database does not violate a defendant’s rights, provided that police investigate to confirm the result. California v. Johnson, 43 Cal. Rptr. 3d 587 (2006). It specifically compared the situation to police using FRS with surveillance footage of a robbery, holding that the database search itself is not directly relevant to the question of “guilt or innocence.” Id. at 597. This could be construed as support for “fishing expeditions,” but a recent Supreme Court case might offer some protection, at least by analogy.

In United States v. Jones, 132 S.Ct. 945 (2012), the court ruled that the use of a GPS tracking device on a suspect’s car without a warrant violated his Fourth Amendment rights. It is possible that Jones could apply to the use of surveillance footage, FRS, and other biometric technology to track a suspect without a warrant.

For more than two decades, board-certified criminal defense attorney Michael J. Brown has represented west Texas defendants charged with alleged state and federal offenses involving drugs, white collar crime, and other matters. He draws on his experience as an FBI agent and a prosecutor to help his clients understand their rights and plan their defense. To schedule a confidential consultation to discuss your case, contact us today online or at (432) 687-5157.

More Blog Posts:

Court Rulings Affirm Fourth Amendment Rights Against Warrantless Cell Phone Searches, Texas Criminal Lawyer Blog, May 14, 2014
Government Not Obligated to Disclose GPS Tracking Policy Memos, Court Rules, Despite Fourth Amendment Concerns, Texas Criminal Lawyer Blog, May 9, 2014
U.S. Supreme Court Rules that, in Some Circumstances, One Resident May Consent to a Search by Police Even When Another Resident Refuses, Texas Criminal Lawyer Blog, May 1, 2014

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