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BarJournal SOLO & SMALL FIRM

JULY/AUGUST 2015
FEaTUrE Smile, You’re on camera

the implications of Government

Usage of Facial Recognition Software

BY EMILY MIKES

acial recognition technology is the the government has access to on a regular perfect surveillance for an indefinite timeframe,
way of the future and increasingly, basis. An individual does not lose all which is the type of surveillance with which the
the way of the present. Facial rights to privacy once he or she steps into Court in Carpenter took issue.
recognition is the process of using a public area. In fact, the Supreme Court
F an algorithmic tool to compare two in Carpenter v. United States stated that First Amendment Concerns
facial images in order to determine whether “individuals have a reasonable expectation The rights and protections afforded to
the images are of the same person. While this of privacy in the whole of their physical journalists are integral to a free press. One
type of technology has been in-place in the movements,” especially in the digital age. of the protections is the right for a journalist
private sector for a number of years, it is now The Court in Carpenter further stated that to protect a source. Facial recognition cameras
starting to gain more prevalence in the public it has been “society’s expectation … that law threaten this protection because inherent
sector with law enforcement groups using the enforcement agents and others would not — in the protection of sources is maintaining
tools for identification purposes. The U.S. and indeed in the main, simply could not — the source’s anonymity, even against the
Customs and Border government. The
Patrols’ entry-exit cameras would give
program which uses the government the
facial recognition “With facial recognition technology, capability to unmask
technology to match the government no longer needs to sources just through
individuals to their the monitoring
passport photograph request membership lists as it did in of individuals’
is an example of interactions. This
how the technology NAACP v. Alabama; rather it need only capability could
is currently being be enough to
used at the federal to strategically place a facial recognition deter sources from
government level. interacting with
However, the legal camera outside a known gathering place journalists, especially
framework has yet to if the information is
catch up to the use of a group to obtain a membership list .” related to government

of facial recognition activities.
technology making Furthermore, facial
its use problematic recognition software
and potentially unconstitutional. Without secretly monitor and catalogue every single threatens the right to free association. The
proper protections, facial recognition movement” of an individual, specifically an right to freely associate depends on group
programs threaten to infringe on a variety of individual’s car. anonymity. This fact was recognized by the
Constitutional rights, including the right to Facial recognition cameras could infringe Supreme Court in NAACP v. Alabama in
privacy, press freedoms, and the right to free on the expectation of privacy by allowing the which the Court stated that “[i]nviolability
association. The technology has also been government to access the most intimate details of privacy in group association may in many
shown to be unreliable, increasing the risk of a person’s life through the strategic placement circumstances be indispensable to preservation
for misidentification. of cameras. Also, the placement of such cameras of freedom of association.” With facial
would allow the government to have regular recognition technology, the government no
Right to Privacy access to citizens’ activities and locations without longer needs to request membership lists as
The right to privacy is implied by the First, going through the proper channels to conduct it did in NAACP v. Alabama; rather it need
Third, Fourth, and Fifth Amendments to surveillance or incurring the high cost typically only to strategically place a facial recognition
the Constitution. This right is meant to act associated with intensive surveillance. The camera outside a known gathering place of a
as a restraint on the amount of information elimination of high cost would allow for near group to obtain a membership list.
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