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.