The Ethicality and Legality of Facial Recognition Technology

The advent of relatively effective and scalable facial recognition technology has prompted a spirited policy debate about the appropriateness of its use in law enforcement contexts. Some commentators have raised both ethical and constitutional concerns over the implementation of these technologies. While the Supreme Court has not yet directly addressed the use of facial recognition systems, there is some indication it may feel compelled to do so in the near future. 

China Leads the Way

China recently made international headlines for its new surveillance regime, which utilizes facial recognition software to automatically track the whereabouts of specified targets. In Xinjiang, China’s westernmost province, an extensive CCTV system and “geo-fencing” tools are used to alert law enforcement when suspects stray beyond a designated area. Xinjiang is a Muslim-majority province, and critics of the system have alleged that the program’s official justification, to prevent Islamist terrorist activities, is really a pretext to subvert the rights of the region’s ethnic Uyghurs. Beijing has announced its plan to vastly increase the range and saturation of its CCTV network over the coming years and incorporate facial recognition software and AI to sift through the surveillance footage and even predict crimes.

China has also begun to equip its police with sunglasses featuring built-in facial recognition capabilities. Critics allege that this technology presents even more troubling privacy concerns, since ostensibly such devices could be used to see inside homes and other places outside of the public sphere.

Facial Recognition in the US

Although China currently represents the extreme example of law enforcement surveillance programs, various police departments around the United States have begun quietly adopting facial-recognitions systems. In fact, over half of Americans have their face in at least one police facial-recognition database.

Critics allege that these databases represent a resounding departure from law enforcement norms. Never before has law enforcement compiled a biometric database primarily comprised of non-criminals. At least 80% of the photos appearing on these databases are of law-abiding citizens.

One concern raised by critics of these databases is the general lack of oversight. Many local and state police agencies form private partnerships with others agencies around the country and are granted unfettered access to large, centralized databases. A recent Georgetown Law Center on Privacy & Technology report found that many agencies do not audit their employees’ use of facial recognition technology. Additionally, only one agency received legislative approval for their program. Because the rapid adoption of this technology has gone largely unnoticed by the general public, few safeguards have been implemented on its use.

Racial Bias   

A major concern for both the ethicality and legality of these facial recognition systems is their demonstrated underperformance on African American faces compared with those of other races. Critics worry that this will lead to a greater instance of misidentification of innocent African Americans by police. The fact that racial minorities are more likely to appear in mug-shot databases compounds the likelihood that these systems will disproportionately affect African Americans.          

Constitutional Concerns

The courts have not yet ruled on the constitutionality of these facial recognition systems. However, some commentators have contended that they implicate First Amendment concerns. Though the Supreme Court held in Laird v. Tatum, 408 U.S. 1, 10–13 (1972), that, absent a showing of danger or direct injury, surveillance does not violate the First Amendment, the FBI has publicly recognized that surveillance can lead to self-censorship.

Critics have also suggested that these facial recognition systems may violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. Though the Court has never recognized a Constitutional right to privacy in public, some of its recent holdings suggest the Court may update its Fourth Amendment jurisprudence to reflect the realities of modern surveillance technology. In her concurrence in United States v. Jones, Justice Sotomayor wrote, “by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track-may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’” 565 U.S. 400, 419 (2012) (quoting United States v. Cuevas-Perez, 640 F. 3d 272, 285 (CA7 2011) (Flaum, J., concurring). The court’s interest in evaluating privacy rights in light of modern technological developments is further evidenced by its grant of certiorari in Carpenter v. United States (currently pending), a case concerning whether search warrants are necessary for tracking the location of cell phones.  If the US continues to move towards China’s ubiquitous use of surveillance and facial recognition technologies, perhaps the Court will feel pressured to revise its understanding of Fourth Amendment protections and help renegotiate the balance between effective law enforcement and individual freedoms.

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