POSTED BY Michael Yacubian
Anyone remember that movie where Tom Cruise saves the world from the overbearing police state? No, not Cocktail. I’m talking about Minority Report, the one where he stops future crimes from happening by using “precognition”. Well, potential human psychic abilities aside, in the movie, after The Cruise ends up on the wrong side of the law, he has to get a shady black market eye transplant so that none of the numerous scanners can read him and report his identity while he walks through the central business district.
In a movie filled with “Police State” analogies, this is one of the lighter invasions of privacy, and yet it’s pretty scary to think about. What if the government, or any organization, could monitor your location just by recognizing your face? In a world with ever increasing availability of surveillance technology, the truth is that your face, as you walk to work, as you head home from dinner while out with friends, is being captured multiple times. And what’s even more frightening, once they have that image, it does not take leap and bounds to find out your identity. Facial recognition software, which keys in on features and analyzes size and shape of eyes, noses, cheekbones and jaws to find a match is surprisingly efficient.
The use of such facial recognition software recently came to fruition in Ohio, where without notice or debate or any kind, facial recognition software was implemented that allowed officers to take photos of potential suspects, and scan databases of driver’s license photos and police mug shots to identify crime suspects. One writer aptly described “The feet-on-the-ground equivalent would be having officers canvass a public area, grabbing IDs from anyone it wishes and running their records.”
Furthermore, Ohio is by no means the only state involved in such investigative technologies. The Washington Post reported that 37 states use facial recognition in driver’s license registrations. Twenty-six of these states also allow law enforcement — local, state and federal — to search or request searches of the database as photos could pertain to investigations.
It is obvious, this is a huge advantage to police investigations. But how far does it go? Examples of the successful use of this technology are forthcoming. In one case, during a heists of a New York Cab driver, a camera on the dashboard of a victim’s car snapped a shot of the gun-wielding suspect. The cops ran the photo through their face-recognition and compared it to the mugshot database, which brought them to a possible match. This technology is not only accurate, but saves time and money. Read more here.
However, the question remains, is the use of such facial recognition software an invasion of privacy that was designed to be protected by unreasonable search and seizure under the fourth amendment? The fact is, like in the case illustrated above, where they have a picture of a suspect, gun in hand (in this case), it seems plausible that probable cause exists. However, that is not always the case and it seems there is no threshold that needs to be meet when police use facial recognition.
So what kind of protection does the 4th amendment provide for such situations?
In the Katz case (Katz v. United States, 389 U.S. 347 (1967)), Justice Harlan laid out an explicit two-part test to determine if law enforcement activity constitutes a search under the Fourth Amendment: “[F]irst that person have exhibited an actual (subjective) expectation of privacy, and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Using this test, the use of a tracking device was ruled not be a search in accordance with constitutional protection because the search was within the public and no increased expectation of privacy existed. This two-prong test has become the de facto standard for determining whether a search has occurred.
However, more recent cases have continued to toy with this test and its application to newer technologies. In the Jones case (United States v. Jones, 132 S. Ct. 945 (2012)), where GPS technology was used to track a suspected criminal, the Supreme Court ruled that this was indeed an invasion of privacy and that the 4th amendment protected from this kind of intrusion. This case involved a physical intrusion, however the court goes on to suggest that “It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.” United States v. Jones, 132 S. Ct. at 954 (2012).
In a concurring opinion, Justice Sotomayor suggests that cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the court should consider whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.
So, does the use of facial recognition technology, the taking of pictures, and then the recognition of those pictures justify a search?
The line is still very murky. However, as the use of these technologies increase, and the awareness of their use, people’s expectations may change, and with this, may change the policy of what a reasonable person expects is an intrusion. The use of public surveillance may not be subject to any expectation, but what those surveillances are used for might be. The world that Sotomayor refers to, where the government becomes the all-knowing overseer, knowing who you are by where you have been, is the world that sci-fi thrillers have depicted for generations. Let’s just hope we don’t have to depend on Tom Cruise to save us from it.
