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Business Law Today

August 2020

A Clear Solution to Police Surveillance Creep: Warrants Needed for Biometric Analysis

Theodore Franklin Claypoole


  • Lawmakers should require police to secure a warrant before applying biometric AI systems to identify people in pictures and videos.
  • Requiring such a warrant is a reasonable solution for law enforcement and protects the Constitutional rights of U.S. citizens.
  • It is also within the U.S. Supreme Court’s current application of the Fourth Amendment to technological change.
A Clear Solution to Police Surveillance Creep: Warrants Needed for Biometric Analysis

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The surveillance society is upon us. Cameras are now everywhere in the public sphere. Business Insider reports that in two years the world may have 45 billion cameras, and the video-surveillance industry is likely to be worth $64 billion.

More insidious than capturing video of all activities in cities and towns all the time, however, is the facial recognition technology used to apply a name to nearly every person found by these cameras. Activating artificial intelligence (AI) for identification in crowds threatens our civil rights, and very few lawmakers have tried to address this concern.

Although Amazon, IBM, and Microsoft have all at least temporarily limited supplying U.S. law enforcement with the tools to identify anyone captured on video, companies like Clearview AI, Japanese tech giant NEC, iOmnicient, Hert Security LLC, and Idemia are happy to sell facial recognition systems to the police. If we are concerned about allowing law enforcement to properly use this tool in the right circumstance and still protect the Constitutional rights of Americans, we cannot rely on the private sector for solutions.

The best way to address this problem is to require police to secure a warrant before applying biometric AI systems to identify people in pictures and videos. Requiring a warrant in this circumstance is a reasonable solution for law enforcement, protects the Constitutional rights of U.S. citizens, and is within the U.S. Supreme Court’s current application of the Fourth Amendment to technological change.

Obtaining a warrant is practical for law enforcement. This is the system all of our policing agencies use when they want to go somewhere or do something that might otherwise intrude on the Fourth Amendment right to be secure in our persons, homes, and papers. The officer simply must show that he or she reasonably suspects that a person has committed a crime, and then the officer is issued a warrant that allows intrusion on private spaces and information.

This keeps our police force from searching everyone and everything hoping to find something for which to arrest someone. That is why the protection was written into the Constitution by our nation’s founders. It is supposed to slow the process down so that someone can think about whether the one group in society with a legal monopoly on violence should be pushing down your front door and rifling through your underwear drawer.

Police already have the right forms to fill out. They know how the process works. Judges are addressing these matters all the time. In other words, the only extra time required will be the extra time that police are supposed to take when they intrude on a person’s privacy.

Requiring a warrant for police to run facial recognition software will protect our Constitutional rights. Assume that a crowd was lawfully demonstrating against the police force itself—perhaps because the police are enforcing restrictive gun laws or because the police have misbehaved in some way. Every color of the political spectrum is affected by this concern. Would demonstrators feel violated if law enforcement used its multiple surveillance cameras to capture their activity? Maybe, but they are likely to expect to be seen by cameras. Would they feel violated if police ran an AI program over the camera footage to take down the names of all people who demonstrated against them? You bet.

As Judge Flaum of the Seventh Circuit Court of Appeals pointed out in language later quoted by the U.S. Supreme Court,

Judge Flaum was writing in 2011 about tracking a person’s movement around town, but the same logic also applies to technology that allows police to not only see all the people in a given space at any particular time, but to apply names to all the faces that appear there as well.

We cannot simply bury our heads in the sand and pretend that these new technologies aren’t affecting the relationship between police and citizens. Replacing horses with automobiles affected policing. When photography was introduced, mug shots made identifications much easier. Computers, lapel cameras, drones, stingrays, military hardware, speech, AI, and DNA databases all changed the nature of policing. Judges across the entire political and judicial philosophy spectrum have noted the changes and how they may affect Constitutional rights.

Even the late originalist Justice Scalia wrote, “Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice.” This, he continued, is because, “We must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’” In other words, if the technology allows law enforcement to intrude deeply into our lives in new ways that would have been unconsidered 250 years ago, it must be checked by the Fourth Amendment, requiring police to obtain a warrant before using the intrusive tech.

When we apply this thinking to facial recognition technology, we can require a warrant be issued to seek the identity of obvious wrongdoers. Thus, if you are caught on camera throwing a Molotov cocktail through the plate-glass window of a local business, the police can clearly and easily use a facial recognition program to find you and bring you to justice. If you are simply walking in a peaceful political demonstration, however, the police would not be allowed to run facial recognition software to place you in the crowd at that time. With no warrant requirement, law enforcement can run the identification program under no limitations.

Requiring a warrant to use this powerful tech may soon be required by the current U.S. Supreme Court. The Court has already begun to insist on Fourth Amendment protections for transformative technologies, requiring that police need a warrant to place a 30-day tracking beacon on your personal vehicle, for example, and that police need a warrant to open and review the contents of your smart phone. SCOTUS even changed their previous rule that information held by a third party was not Constitutionally protectable when they recently held that police need a warrant to request the past month’s worth of cell phone tracking records to pinpoint your location at different times.

Seventy years ago the Supreme Court held that keeping your name from being associated with political causes was part of your right to free speech and free association. You may have reason to fear the government taking note of your association, which is why that particular Supreme Court decided that the State of Alabama in the 1950s was not allowed to require a list of all local NAACP members. The unfettered technology to see who is entering gay bars, gun clubs, and political protests, and then to identify each individual, allows the government to invade and chill people’s speech and assembly rights.

This concern for privacy even in public places is echoed by our current Chief Justice, John Roberts, who wrote, “A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, ‘what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. In the past, attempts to reconstruct a person’s movements were limited by a dearth of records and the frailties of recollection. . . . [With current technology] police need not even know in advance whether they want to follow a particular individual, or when.’”

Thus, the Court has recognized that attending politically sensitive meetings anonymously is an important right covered by the First Amendment, and that limited technological intrusions on privacy is an important value of the Fourth Amendment. It seems well within the court’s present mindset to limit the government’s use of overly intrusive technology, like running facial recognition systems on people in the public sphere without specific law enforcement reason to do so.

Harkening back to one of the first important privacy opinions written in 1928, Chief Justice Roberts noted recently, “As Justice Brandeis explained in his famous dissent, the Court is obligated—as ‘[s]ubtler and more far-reaching means of invading privacy have become available to the Government’—to ensure that the ‘progress of science’ does not erode Fourth Amendment protections. Here the progress of science has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers, ‘after consulting the lessons of history,’ drafted the Fourth Amendment to prevent.”

When will the technology rise to the level that a warrant is required? In the recent decision, the Court held that “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” It seems reasonable that peaceful political protesters could subjectively fear being named to police during political gathering.

The Supreme Court recently addressed this precise question. “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of [new technology] through lawful conventional surveillance techniques,” wrote Justice Sotomayor. She continued, “I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance.’”

The most defensible Constitutional choice in this circumstance is for Congress or multiple state legislatures to place limits on policing power by requiring warrants to run biometric ID software. Several Justices seem to agree in that they joined Justice Alito in his sentiment in Jones: “

In November of last year, U.S. Senators Coons and Lee introduced bi-partisan legislation requiring federal law enforcement to obtain a court order before using facial recognition technology. This act provided a logical framework for protecting Americans from a powerful, new state-operated technology that has grown unchecked as a tool for intruding on citizens’ privacy.

Since that time, the Facial Recognition and Biometric Moratorium Act was introduced into both houses of Congress this summer. The act calls for a complete prohibition on police use of facial recognition software and similar biometric technology like voice recognition or gait identification systems. However, this act, like some of the city-level bans that have been enacted in the United States, overreacts to the technology. Biometric identification tools are valid and useful law enforcement implements, so banning them completely tosses the baby out with the bath water.

Requiring a warrant to use the powerful technologies, however, stops indiscriminate and likely political applications while keeping it available to help catch criminals. Warrant obligations are the right step to protect our privacy and other Constitutional rights while applying the technology to important problems. We should not wait for the right case to rise to the Supreme Court before limiting use of this technology. A legislative solution is best and most efficient.