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Facial Recognition Technology

Analyzing the Constitutionality of Using Facial Recognition Technology in Law Enforcement

The U.S. Constitution is the fundamental charter of the United States government. It serves as a reminder that the government exists to serve its citizens.

The Fourth Amendment to the Constitution protects an individual from unreasonable search or seizure. Under the Fourth Amendment, we enjoy a reasonable expectation of privacy. However, as technology advances, the definition of “reasonable” is undergoing a reexamination.

Facial recognition technology is increasingly being used in public places in Mobile and throughout the US. It is a biometric recognition of facial characteristics such as the nose’s width and the cheekbones’ shape. Other forms of biometric recognition may involve finger imaging, voice authentication, or retinal scanning.

Various software vendors may use a 2D image or a 3D image, which is more accurate. There is also thermal imaging using infrared sensors to detect heat on a face.

The FBI uses facial recognition, as do local law enforcement agencies in larger U.S. cities such as Mobile. It is also employed in stadiums, airports, corporate and government buildings, and casinos. Even Facebook uses a facial recognition template, though users can turn off that technology in the settings of their accounts.

Privacy in Public Places 

What is considered the “reasonable” use of this technology? Is there an expectation of privacy in public places? How should Mobile, AL law enforcement ethically and legally employ this technology to do its job?

Critics argue that facial recognition technology has questionable accuracy and can be biased against certain demographic groups.

Those who advocate for the technology argue that it is used as visual surveillance, which is not a search under the Fourth Amendment. The argument is it sees what the naked eye sees.

Proponents argue that law enforcement can complete an investigation faster, especially with the help of a criminal database to compare images, something that was previously done manually.

Studies show that using facial recognition technology is not a violation of the Fourth Amendment as long as it is employed in a public place.

Still, there are laws on the books in California, New Hampshire, and Oregon that prevent the use by law enforcement of this technology obtained from body camera recordings, primarily because of its questionable accuracy and potential for bias, especially against certain demographic groups.

The software is more likely to misidentify suspects with dark skin.

Facial Recognition Software Full Disclosure

The concern is that law enforcement may violate civil rights and privacy when using this technology to track and monitor individuals without their knowledge or consent.

Across much of the country, neither police nor the courts must disclose when facial recognition software helped identify someone as a suspect.

A guide for the National Association of Criminal Defense Lawyers states that defense attorneys should ask detectives what evidence was used to name their client. When facial recognition is used, the guideline advises lawyers to ask for supporting materials that were part of their investigation, a list of all named persons identified by facial recognition, and the confidence scores assigned to each person identified.

Georgetown’s Center on Privacy and Technology suggests defense attorneys know how to spot the use of facial recognition technology and scan an arrest warrant for the names of companies that make the technology.

The defense should determine to what extent police credited an eyewitness with identifying a suspect when they may have instead been shown photos generated by a software program.

Laws are changing. Utah and Washington state require police to disclose when facial recognition software is used in a criminal case. Other states are considering adopting similar laws and calling on regular testing for the accuracy of this software.

 

Your Mobile, AL Criminal Defense Attorney 

While using facial recognition technology may not violate the Fourth Amendment since there is no expectation of privacy in a public place, using thermal images inside a home to identify a suspect may fall outside of Constitutional protections.

Attorney Jason Darley is prepared to argue that facial recognition technology is less accurate for people of color and women and presents many accuracy problems. There are reasons its use is banned in many states and has limited use in court. Other challenges are privacy concerns and a lack of transparency by law enforcement.

Darley Law, LLC will discuss your case and any potential civil rights violations. Hiring a defense attorney committed to understanding how facial recognition technology can be misused to make a case against you is essential. Contact Mr. Darley at (251) 441-7772 at his Mobile office for a complimentary initial consultation to determine the strength of your case.

 

Sources:

Penn State Law Review
https://www.pennstatelawreview.org/the-forum/facial-recognition-technology-a-fourth-amendment-violation/#:~:text=An%20analysis%20of%20the%20Katz,are%20used%20in%20public%20places.

CRS
https://crsreports.congress.gov/product/pdf/R/R46541

NACDL
https://www.nacdl.org/getattachment/548c697c-fd8e-4b8d-b4c3-2540336fad94/challenging-facial-recognition-software-in-criminal-court_july-2019.pdf

Wired
https://www.wired.com/story/hidden-role-facial-recognition-tech-arrests/#:~:text=Substances%20such%20as%20DNA%20found,used%20as%20evidence%20at%20trial.

 

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