Is Government Use of Facial Recognition Software a Fourth Amendment Violation? Unfortunately for Your Privacy, Probably Not

By: Alex Coplan

Congress has failed to implement uniform guidelines for use of facial recognition (FR) programs. Today, many law enforcement agencies use public photos and videos to aid in criminal investigations. There are concerns that wide-spread public surveillance and use of these programs could violate the Fourth Amendment. However, government observation of people in public generally falls outside the scope of Fourth Amendment protections. Since law enforcement’s use of FR software only enhances public photos and videos, it likely does not count as a “search” under the Fourth Amendment.

Constitutional Implications

Constitutional concerns with FR arise under an individual’s right to privacy. Under the Fourth Amendment’s protection against unreasonable searches and seizures, the question is whether people have an actual expectation of privacy in public, and whether society recognizes this expectation as reasonable. Currently there is little federal framework specifically directed at the use of FR technologies by government and law enforcement entities. Under the third-party exposure doctrine, government observation of people in public is not a “search” for the purposes of the Fourth Amendment. However, as technology improves, so does the ability to survey a person’s public activity. Furthermore, when detailed information is collected regarding a person’s movement, a privacy interest may arise because of the cumulative nature of the information received. Indeed, the Supreme Court in Carpenter v. United States found that long, continuous surveillance using new technologies may implicate privacy interests protected under the Fourth Amendment. Therefore, the constitutionality of using FR technologies may be dependent on how exactly FR services are used.

What Can We Learn from Other 4th Amendment Cases?

The United States does not directly regulate the use of FR technology by either the private sector or government entities. However, a few court cases may shed light on how privacy and the use of electronic surveillance connect.

Government use of technology to monitor public activity may not violate the Fourth Amendment. In United States v. Knotts, the Court addressed whether a GPS tracking device placed in a container and obtained by a suspect exceeded Fourth Amendment limitations. Finding that the device only revealed information that could have been viewed by the general public—like the suspect’s travel on public roads—the Supreme Court held that the use of this technology in this limited capacity did not violate the Fourth Amendment. This holding suggested that the government may use technology to monitor a suspect’s movements in public without a warrant, when that surveillance could be achieved through regular visual surveillance by anyone, not just the police. However, the Knotts court warned that constitutional issues may arise if “twenty-four hours surveillance of any citizen of this country [were] possible.”

In another case that explored GPS motion tracking, concurring Justices in United States v. Jones expressed concerns about extended use of surveillance technology. There, the Court held that placing a tracking device on a suspect’s vehicle constituted a “trespass” prohibited by the Fourth Amendment. In Jones, the FBI placed the tracking device and analyzed the suspects movements for 28 days. In the FR context however, the concurring Justices focused on long-term tracking of a person’s public movements, the information of which could be used for “years into the future.” It was not long before the Court’s concern in Jones—using technology for constant surveillance—was realized.

Long-term surveillance of a suspect may constitute a “search” under the Fourth Amendment. In Carpenter v. United States, the Court held that law enforcement’s use of cell site location data spanning over a 152-day period, which allowed law enforcement to track a suspect’s location, constituted a “search” under the Fourth Amendment. Since this form of surveillance was considered prolonged and continuous, it overcame the presumption of the third-party exposure doctrine that surveillance of public activities does not raise Fourth Amendment issues.

However, the Carpenter court cabined its holding to real-time tracking for periods less than seven days, explicitly stating that the holding was a “narrow” one. While Carpenter and Jones cautioned against long-term tracking of suspects, FR itself may not raise the same exact issues. The use of cell site location information and FR technology is unlikely to be analogous, in that FR technology by itself is not generally used for continuous surveillance. Importantly, FR is not the means of surveillance, but merely enhances photos and videos already taken. In other words, video or photo surveillance in conjunction with FR technology is the concern.

This concern was addressed in Leaders of a Beautiful Struggle v. Baltimore Police Department. In this Fourth Circuit case, the Baltimore Police Department contracted with Persistent Surveillance Systems (PSS) to conduct its Aerial Investigation Program (AIR), which is equipped to fly drones over the city of Baltimore and take video for 40 hours a week. This aerial surveillance technology, combined with BPD’s resources, can give detailed information about an individual’s identity and activity. Regardless, the Fourth Circuit concluded that people do not have a right to avoid being seen while in public and that the AIR program sought to meet serious law enforcement needs with limited privacy invasions.

FR Use Does Not Violate the Fourth Amendment, but Further Regulation is Required

As long as FR only uses public video and photo surveillance, capturing only what the naked eye can see, the use of FR only enhances information already in public view. Additionally, law enforcement’s use of DMV photos or other images held by third parties, combined with FR technology, likely does not violate Fourth Amendment privacy rights. As a result, the third-party exposure doctrine likely applies, as was found in Leaders of a Beautiful Struggle v. Baltimore Police Department. Indeed, although the Court in Carpenter found the prolonged use of cell-site location information a violation of the reasonable expectation of privacy, the purely visual and public nature of the surveillance with regard to FR programs would likely not implicate the Fourth Amendment.

The cases described above demonstrate that the use of FR technology in public likely does not result in an unreasonable search, as long as the surveillance remains in a public place. The use of FR programs in more private settings, however, may lead to privacy implications protected by the Constitution.

As a result, the weight of the problem falls more heavily on the accuracy of FR programs rather than Fourth Amendment issues. If an FR program were to be wrong, an innocent person may be investigated, or even arrested, for a crime they did not commit. This is an abhorrent result for a technology made exclusively for the purpose of making positively identifying criminals easier. Federal legislation is hopefully not too far off. Until FR can be perfected, national regulation is required to ensure the use of such software is not abused.

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