By Andre A. Janiszewski

The world changes seemingly every week, and with a shrinking world comes increased difficulties.  Fighting crime and protecting citizens is one of the government’s most important functions.  Today, we face unprecedented threats both foreign and domestic.  Technology also changes quickly, in part to keep up with the demands of law enforcement to combat these threats.  One tool that law enforcement, particularly the FBI, has used is facial recognition.  Facial recognition is one of law enforcement’s newest tools to keep Americans safe.

In October 2013, Frank Abagnale spoke to a packed auditorium at Bryant University.  As a Bryant student at the time, the prospect of seeing the real-life star of Catch Me If You Can was enthralling.  Abagnale, a con-artist, check forger, fake doctor, fake pilot, and fake lawyer told the captivated audience how he pulled it all off.  He never went to medical school, yet was a doctor on paper.  He never went to law school, but passed the bar anyways (which was legal in Louisiana at the time, so “fake” may be presumptuous).  When he was finally caught, the FBI gave him an ultimatum: work for the bureau, or spend time in federal prison.  Toward the end of his speech, he was asked about facial recognition.  Obviously, as an FBI agent, his disclosure on the subject was limited.  He did say something that has stuck with me since that day: “The FBI can find someone from an aerial photograph of a stadium with 75,000 people in a matter of seconds.”  Think about how incredible that is.

Facial recognition is not perfect.  In fact, it failed to readily identify Dzhokhar Tsarnaev following the Boston Marathon Bombing, despite the fact his face was “in the system.” However, the accuracy of the technology is quickly improving, even since 2013.  Frank Abagnale commented on the technology’s capabilities and as with anything, mass scale implementation takes time.  For the time being, facial recognition accuracy is partially limited by the cameras which capture the faces.  A surveillance camera outside a bank, for example, may not be high definition due to the cost of such equipment at scale.  Just as large televisions have become inexpensive in recent years, HD cameras have become cheaper and smaller.  The back of a smartphone houses a camera which would have cost thousands of dollars a few years ago.

During a recent Congressional hearing, evidence surfaced which stirred up new privacy law debates.  It turns out that the FBI has roughly 412 million images in its facial recognition database.  In addition to mug shots, the database includes pictures from drivers’ licenses and passports.  80% of the 412 million images are not from criminal entries.  That has led to privacy advocates to question how the FBI has accessed these images for uses well beyond the scope of citizen’s expectations.  In Congress, both Republicans and Democrats expressed concerns over the collection of images.

The prevailing argument against this type of collection is Americans should not have to submit to criminal facial recognition searches just because they want to drive a car.  Nor should people be wary that their faces could be tracked via the thousands of security cameras that cover large cities.  Alternatively, there is no indication that the FBI intends to use the photos for anything other than collection, tracking someone only if they are subject to a criminal investigation.  Yet the prospect of abuse remains – a problem that laws are specifically enacted to protect.  The Fourth Amendment protects citizens from unreasonable searches and seizures.  As no federal appeals court has ruled on facial recognition, it is tough to say whether a court would view this collection as a violation of the Constitution.

One particularly troubling area of Fourth Amendment jurisprudence could play a part in the debate.  The third-party doctrine is a product of judicial construction, created in the Supreme Court’s 1979 decision Smith v. Maryland.  The doctrine is simple: there is no Fourth Amendment protection for information voluntarily turned over to a third party because such action relinquishes a subjective expectation of privacy.  Thus, when a photo is posted to Facebook, or taken at the Registry of Motor Vehicles, the question becomes whether that is protected information.  Courts have given incredible deference to the third-party doctrine in the context of cellular data seizure.  The last time the Supreme Court addressed the doctrine was in 2012, where Justice Sotomayor and Justice Alito expressed concerns over the doctrines applicability to modern day technology.  If the doctrine continues to hold strong, then posting a photo or having an ID processed means any expectation of privacy in that image is gone, and the Fourth Amendment no longer applies.

There is no doubt that when the Supreme Court returns to a full bench, they will revisit the third-party doctrine.  In the meantime, the privacy debate continues.  The FBI maintains that respecting privacy concerns is integral to their operations.  Plus, there is a legitimate argument that, considering the third-party doctrine, there is no need to worry if the government has your picture.  If there is nothing to hide, there is nothing to worry about.  However, with great power comes great responsibility.  It is slightly worrying that such power could be used as a pretext to greater invasions predicated on security at a later time.  The Supreme Court should finally give law enforcement agencies and citizens guidance to this critical area of law.


Student Bio: Andre is a staff member on the Journal of High Technology Law.  He is currently a 2L at Suffolk University Law School.  He holds a B.S. in Business Administration with a concentration in Marketing, from Bryant University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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