Constitutional Concerns for Facial Recognition Surveillance

The use of facial recognition technology has been around for years and has been employed by state and federal law enforcement agencies. However, the technical limitations of facial recognition technology hasn’t presented a major risk to the privacy of individuals.

Today, facial recognition software has progressed to a remarkable degree. Average people may use facial recognition as a cool feature for social media purposes, or as a security measure for their phones.

However, as computing technology advances at a rapid rate, the ability for law enforcement to scan public places in real-time using facial recognition technology can pose a significant risk to people’s personal liberties and privacy, ushering an unprecedented age of mass surveillance.

Constitutional Protections for Privacy

Under the Fourth Amendment of the United States Constitution, the government may not conduct unreasonable searches of persons, their homes, papers, and effects. For the most part, the government may only conduct a search pursuant to a valid warrant supported by probable cause.

However, the Fourth Amendment does not protect individuals against what are known as “plain view” searches, where police can observe things from a position they are legally entitled to inhabit at the moment. The Fourth Amendment prevents governmental intrusions into a person’s “reasonable expectation of privacy.”

For example, if someone parks their truck on the driveway of their home and leaves the tailgate down, exposing large packages of cocaine to anyone passing by, it would not be an unreasonable search if a patrol drove by and saw the illicit packages.

In contrast, it would be an unreasonable search if the police proactively opened the tailgate to discover the cocaine, because the defendant has a reasonable expectation of privacy regarding the contents of their truck.

Reasonable Expectations of Privacy

A person’s reasonable expectation of privacy does not end merely because something is in a public space. Courts have held that people may have a reasonable expectation of privacy in public areas if the circumstances suggest that the defendant nevertheless tried to preserve their privacy.

In United States v. Katz, the U.S. Supreme Court held that the defendant had a reasonable expectation of privacy in a public phone booth after closing the booth’s door. Before the advent of mobile phones, telephone technology relied on a network of physical wires. Many cities had phone booths that allowed people to make calls remotely from their homes. These phone booths let the user close a door behind them so others couldn’t listen to the conversation.

The Court in Katz held that the defendant’s phone booth conversations were protected under the Fourth Amendment despite taking place in a public space because he took steps to preserve the privacy of his conversations from the “uninvited ear.”

However, the Court also held that people do not have a reasonable expectation of privacy to information that was knowingly exposed to the public, including their identities. In United States v. Dionisio, the Supreme Court was tasked with determining whether the Fourth Amendment protected defendants from submitting vocal samples for comparison with evidence.

The Supreme Court held that a person’s vocal characteristics “[l]ike a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.”

Thus, there is precedent regarding a person’s reasonable expectation of privacy for knowingly exposing their identity in public.

Limitations of Public Exposure

Some may argue that the use of facial recognition technology in law enforcement does not implicate privacy issues under the Fourth Amendment, as outlined by the Supreme Court. However, these principles were predicated on the understanding that certain surveillance capabilities were limited.

In light of the rapid growth of internet and mobile communications technology, situations in which one’s privacy expectations used to be reasonable might now be considered unreasonable, given the capabilities of today’s technology.

Historically, people have enjoyed a reasonable expectation of privacy regarding their identities due to the practical limitations of gathering information. However, technological advances such as GPS and cloud-based computing make recording, preserving, and searching for private information easier.

Should the technological capacity for gathering unprecedented amounts of information move the chains on what privacy expectations are considered reasonable?

The Supreme Court considered the changing limitations of technology regarding private information in United States v. Maynard. In this case, the Court held that the Fourth Amendment prohibited the police from attaching a GPS tracker to the defendant's car and monitoring their moves non-stop for an entire month.

The Court held that “the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.”

Therefore, there is also precedence suggesting that the information-gathering capacity of technology does not lower the bar for what society considers to be reasonable regarding an individual’s expectation of privacy. As a result, there may be hope in the ongoing battle between privacy and technology.

Contact Scaringi Law for Legal Representation

At Scaringi Law, our legal team is dedicated to protecting your constitutional rights. If you are concerned that your legal rights and privileges have been violated, you should reach out to our attorneys at Scaringi Law.

Please contact Scaringi Law at (717) 775-7195 to ask about a consultation regarding the merits of your case today.