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Facial recognition technology and a 'reasonable expectation of privacy'

Law enforcement might consider using discretion before a court decides whether police need a warrant to scan someone’s face


From crafting policy to tactical considerations, PoliceOne's 2017 Guide to Emerging Technologies features expert analysis on soundwave technology, facial recognition software, handheld narcotics analyzers, the future of traffic stops, how constitutional law impacts the collection of data for investigations, and how advancements in biometric technologies will help improve correctional facilities.

Sept. 11 demonstrated that the greatest military might in the world couldn’t protect us against the “asymmetric threats” of a few “unidentifiable enemies.” The idea that FRT could identify terrorist suspects in public locations before they committed their crimes seemed to offer some protection.

Last May, the Government Accountability Office (GAO) issued a report about the FBI’s amassing of 411.9 million facial images as part of its Next Generation Identification (NGI) program. It criticized the program’s secrecy and intrusion on privacy. Eighty percent of the photos were of people who had committed no crime. That’s a significant police-created biometric database of primarily law-abiding Americans.

When debating any privacy compromises associated with FRT and active surveillance, society must weigh the costs associated with forgoing anonymity in public versus the benefit of active crime prevention using the newest technology available. (Photo/Pixabay)
When debating any privacy compromises associated with FRT and active surveillance, society must weigh the costs associated with forgoing anonymity in public versus the benefit of active crime prevention using the newest technology available. (Photo/Pixabay)

“If you’re reading this in the United States, there’s a 50 percent chance that a photo of your face is in at least one database used in police facial-recognition systems,” reported the Atlantic Monthly last October.

Georgetown Law’s Center for Privacy and Technology published a report the same month addressing the scale of local and state police involvement in facial recognition. The year-long investigation was based on more than 15,000 pages of records obtained through more than 100 FOIA requests. It found that police departments in nearly half the states can use facial-recognition software to compare surveillance images with databases of ID photos or mugshots. Some departments only use the technology to confirm the identity of a suspect who’s been detained; others continuously analyze footage from surveillance cameras.

The GAO and Georgetown Law’s reports are fueling public debate, which often lags behind evolving technology – as do court decisions. To date, I could find no court ruling on police use of FRT and the Fourth Amendment’s reasonable expectation of privacy against government intrusion absent probable cause and a warrant.

Public debate

Proponents of police use of FRT argue:

• There is no expectation of privacy to your face once you take it out in public.

• Any privacy intrusion is a small price to pay for increased public safety

• What difference does it make if the government has a digital algorithm of your face they can use to ID you if you haven’t done – or aren’t doing – anything wrong? 

Privacy advocates’ concerns include:

• A reasonable expectation of privacy includes a reasonable expectation of anonymity from government use of computer algorithms and databases to capture law abiding citizens’ faces and identify them without their knowledge or consent.

• FRT allows for a different kind of tracking that can occur from far away, in secret, and on large numbers of people. Fingerprints are only left on things you touch and you know when police are taking them. You can’t leave your face at home and, with limited exceptions, it isn’t acceptable to cover it. Depending how it’s used, FRT could rob citizens of a reasonable expectation of anonymity.  

• Giving police the right to do this without judicial oversight creates a slippery slope that could lead to real-time, mass surveillance like that of Big Brother. Police have an incentive to collect as many photos as possible because the larger the database the more likely they are to get a match and solve a crime or identify a suspect or person of interest.

• Real-time, mass surveillance could also chill First Amendment speech unpopular with the government. Advocates point to the FBI’s disgraced COINTELPRO program of surveillance against civil rights activists and Vietnam War protesters during the ‘60s and ‘70s.

When debating any privacy compromises associated with FRT and active surveillance, society must weigh the costs associated with forgoing anonymity in public versus the benefit of active crime prevention using the newest technology available.

Legal questions

While the courts have not yet addressed the following, they will. Law enforcement would serve itself well not to go into those cases with a record of overreaching, else the courts restrain us more than we might have effectively restrained ourselves.

1. Does a face recognition constitute a “search” that triggers Fourth Amendment protection?

2. What is the legal standard police must meet before using FRT?

3. Does your state have a law regulating the collection of biometric data

4. Do your state courts offer more protection against government intrusion under your state constitution than the Supreme Court does under the U.S. Constitution? See, for example, an analysis of FRT under Utah case law as distinguished from the same analysis under federal case law. 

Plan and consider

1. Consulting with your prosecutor about federal and state laws and court cases that might be relevant to police use of FRT.

2. Adopting FRT use policies and making them public. Here is a sample policy

3. Training officers to ensure the most effective use of the scanners. The Institute of Electrical and Electronics Engineers (IEEE) Certified Biometrics Professional (CBP) program offers courses which set a baseline of biometric knowledge for those who plan to use FRT. These course standards aren’t yet national but some agencies have adopted them as certification standards.

Law-abiding citizens are not against police use of FRT. Georgetown Law’s Center on Privacy & Technology noted:

The benefits of face recognition are real. It has been used to catch violent criminals and fugitives. The law enforcement officers who use the technology are men and women of good faith. They do not want to invade our privacy or create a police state. They are simply using every tool available to protect the people that they are sworn to serve. Police use of face recognition is inevitable. This report does not aim to stop it.

But the public has real concerns about FRT and privacy. Concerns we’d do well to consider in advance of court rulings.

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