Facial Recognition Technology requires a photographic camera combined with face recognition software. The software identifies human faces captured by the camera, and quantifies them using an algorithm. The algorithm measures “nodal points” on the face, such as the distance between the eyes, cheekbone shape, nose width, and jaw shape. The combination of the nodal points becomes a person’s “faceprint”.
The Federal Bureau of Investigation (FBI) has announced that it will use Facial Recognition Technology in its Next Generation Identification (NGI) system. The system, which will eventually serve as an upgrade to the current Integrated Automated Fingerprint Identification System (IAFIS), will use security footage from public cameras to identify suspects and people of interest across the country. IAFIS contains only fingerprint information, while the NGI system can store information about a person’s voice, iris, and facial biometrics. The program is currently being tested in certain areas, using photographs drawn from law enforcement databases. When the system is rolled out in full scope in 2014, the FBI will provide facial recognition software to law enforcement agencies nationwide.
For this technology to work effectively as an identifying mechanism, a large database of faceprints must exist, against which images captured by the camera could then be compared. These faceprints will need to have already been matched with a name. A criminal database is an obvious initial source for this, but it has limited reach. To grow its faceprint database, the NGI program could draw from non-criminal government photograph databases such as those maintained by a state’s Department of Motor Vehicles, U.S. Citizenship and Immigration Services, or even privately held databases that are maintained by social networking websites. Often, photographs in these databases will be connected to a person’s real-name identity, and the originators may not hold exclusive rights to the photographs, making the database accessible to law enforcement. While no law directly protects people’s interests in their faceprints, the acquisition of faceprints without a warrant may implicate the subjects’ Fourth Amendment right to be “secure in their persons…against unreasonable searches and seizures.”
Fourth Amendment Implications
No court has yet explicitly recognized Fourth Amendment protection of faceprints. The Supreme Court has recognized, however, that other biometric data is constitutionally protected. In Davis v. Mississippi (394 U.S. 721 (1969)), defendant Davis was held without a warrant or probable cause during the course a rape investigation. During this time, defendant’s fingerprints were taken by authorities, and were matched to a set of fingerprints found at the scene of the crime. The evidence of the match was used at trial, and defendant was convicted of rape. Davis appealed, alleging that the acquisition of the fingerprints was the result of an unreasonable search and seizure. The Supreme Court agreed, stating that fingerprints could not be collected without a warrant. Like possessions taken from a person, the fingerprints bear “evidentiary value which the public authorities have caused an arrested person to yield.”
Some guidance is provided by Skinner v. Railway Labor Executives Ass’n (489 U.S. 602 (1989)), in which labor organizations challenged the drug testing procedures used by their employers. The challenged procedures included collection of blood and urine. The court found such procedures, without warrant or probable cause, to violate the Fourth Amendment, citing “concerns about bodily integrity.” While such concerns differ from those that arise in the use of facial recognition technology, Skinner is indicative of the notion that the Fourth Amendment includes some protection against using evidence that was drawn from the a person’s own body to convict him or her.
Most recent is United States v. Jones (132 S.Ct. 945 (2012)), in which authorities planted a tracking device on defendant’s car. The court found that tracking the defendant’s public movements through a Global Positioning System unit violated the Fourth Amendment. Similarly, matching a faceprint to an image captured by a public camera in order to track a person’s location at a given time may violate these protections.
Together, these cases imply that the warrantless collection and use of faceprints by law enforcement is unlikely to overcome the hurdle of the Fourth Amendment. As the use of facial recognition technology becomes more prevalent and faceprints gain prominence as a form of biometric identification, that theory is likely to be put to the test.