Skip to comments.Does This Picture Mean the 4th Amendment Is Dead?
Posted on 02/20/2020 3:55:46 PM PST by nickcarraway
The language of the Fourth Amendment strongly suggests that warrants are required for searches, and the Supreme Court has permitted only narrow exceptions to the warrant requirement.
Last week, The New York Times reported on a facial recognition technology company offering law enforcement, federal government agencies, and companies the ability to identify people simply by uploading a photograph. Clearview AI has compiled more than three billion images by scanning Facebook and other platforms. It analyzes uploaded facial images and returns public photos that match the photo subject, along with links to where those photos appeared. Clearviews service, says the Times, could identify activists at a protest or an attractive stranger on the subway, revealing not just their names but where they lived, what they did and whom they knew.
Code within the technology would allow it to integrate with augmented-reality glasses, allowing someone walking down the street, perhaps, to identify each person encountered in short order. Perhaps such glasses or stationary monitors could be tuned to alert on criminal suspects.
The reporter who wrote the story, Kashmir Hill, has been at it for years, using an experiential curiosity to draw out the peculiarities, trends, and threats animating our onrushing digital society. She lived on bitcoin for a week back when cryptocurrency was new and cool.
Her role in this story was interesting: Clearview wasnt responding to her inquiries. She invited police officers with access to Clearviews technology to search her face. The company then contacted the police officers asking if they were talking to the media. The vignette helps make real the Orwellian possibilities in this technology offering.
The reaction to the story about Clearview has been strongly negative, at least in my field of vision. Sundar Pichai, the CEO of Googles parent company, Alphabet, has called for a moratorium on the technology. One exotic proposal would thwart Clearviews collection of facial images through a class-action copyright lawsuit.
If facial recognition technology or implementations of it are to see a legal response, Id like it to be founded in some process that articulates what right, existing or inchoate, it offends. Decisions about technology deployment should not be based on feelings or even similarity to what China does. Rather, we should ask what we get and what we give up.
That possibility of identifying suspects in near-real time is a tantalizing potential benefit of this technology. It could dramatically speed apprehensions, ending crime sprees before they start. You could get automated all-points bulletins that immediately scour cities for wanted persons. Those are substantial law enforcement and security benefits indeed.
On the other side of the ledger are a number of values, including privacy. Facial recognition technology will have error rates, and some studies have shown higher error rates when used on minorities. These are matters for programming and tuning so that any use of the technology does not violate Due Process and Equal Protection rights not small challenges.
As to privacy, the technology could undo the sense dominant since urbanization that one can walk down the street mostly unrecognized, unrecorded, and unmonitored. Losing that would be a big change and a big loss for legal and social freedom, as well as some dimensions of personal security. Manifold details of the technology raise more specific privacy issues, such as who accesses and what happens to data about identifications.
10 SECONDS Do You Know What Happened On This Day? Ive given some thought to one dimension of this enormous problem. In 2017, I opined about facial recognition technology in a paper that laid out a methodology for administering the Fourth Amendment faithfully to its text, even in a high-tech context. Some rather exotic arguments in that paper have rapidly become timely. Law enforcement use of facial recognition (even through a commercial product) is, of course, subject to Fourth Amendment constraints.
Instead of the reasonable expectation of privacy test that has dominated Fourth Amendment cases for much of the last 50 years, I believe courts should return to applying the Fourth Amendment by its terms: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. That language asks whether there has been a seizure or search of particular things and, if so, whether that was reasonable.
Is there a seizure involved in facial recognition? Perhaps with drivers license photos, but when photos are taken consensually, generally, no. In Administering the Fourth Amendment in the Digital Age, I said:
Our faces are exposed to the public every day, of course. Facial recognition can be done on photographs that were taken voluntarily or with the acquiescence of the subject, so collecting the appearance of the face is typically not a seizure. There is no right to exclude others from such imagery per se.
Gathering a facial image (in the visible spectrum) does not give exposure to concealed things, so collection of a facial image is not a search on that basis. That does not foreclose the question whether exposed facial images once collected might be searched.
There is a common trope that things in public are exposed, so they cant be searched. Its not quite right. In Kyllo v. United States (2001), the Supreme Court noted that, when the Fourth Amendment was adopted: to search meant [t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search a house for a book; to search the wood for a thief. Often, exposure given to concealed things signals that a search has happened. But the purpose of finding something is the essence of searching. You can search a wood, which is open to all. You can also search faces displayed in public, I believe.
Facial recognition systems rely on what Ive called pre-search. With todays technologies, you can canvass an area before you know what youre going to look for. Facial recognition relies on searching every face to create a signature, then searching all those faces again via the signature when a candidate for matching is being sought. As I point out in my paper:
Searching has two conceptual parts, which generally occur in a particular order. First, the specific thing to be searched for is identified. Next, the field in which it may be found is examined. Searching a forest, for instance, involves identifying the person, instrumentality, or evidence to be found, then marching through the area with eyes peeled for that thing. Facial recognition reverses these processes. It collects the material to be canvassedfacial signaturesthen at any later time canvasses the earlier-collected facial signature data for a match. The fact that the steps in the process are reversed should not change the conclusion that facial recognition is a search technology and the use of it is a search. Conversion of a facial image to a facial signature that can be scanned for matches is a search of the face itself to render data that make the face amenable to being the object of a later search. It is enough of a step in the process of searching that it is best recognized as a search occurring at the time the processing is done. Facial recognition is an example of exposed things being searched because of the purpose of finding something. There is no other purpose to facial recognition technology.
The language of the Fourth Amendment strongly suggests that warrants are required for searches, and the Supreme Court has permitted only narrow exceptions to the warrant requirement. A warrant for a program that searches all faces could not issue under the Fourth Amendment, as it would fail the particularity requirement. It would be a general warrant.
The methodology on display here, as I said, is exotic. But it is the best Ive been able to do at matching the Fourth Amendments text and rationale with the new technological environment were rapidly entering. Its an environment that includes things like rapid DNA sequencing. Law enforcement uses of facial recognition will have to be very sharply tailored indeed if we are going to achieve the Supreme Courts oft-stated goal of preserv[ing] that degree of privacy against government that existed when the Fourth Amendment was adopted.
For a right to privacy to exist in public we would need the right to wear motorcycle helmets to completely shield our identities. Mere masks or makeup won’t be enough.
On "Nextdoor" I use my dog's photo.
No pic here on FR.
So, they're limited to my Driver's license and passport pics.
Good luck matching those with public surveillance cameras.
Every time you handle a penny, it’s secretly taking pictures of you.
If something is public, then it’s not private. It can be investigated by anyone.
So, they’re limited to my Driver’s license and passport pics.
= = = = = = = = = = = =
Lucky me....I was ‘overseas’ before Passports were needed to travel there.
Also, my last Drivers License (Positive ID) was taken with my sunglasses on....Deep Dark sunglasses.
While in DMV I was finishing up a questionnaire and she said turn around for picture. My glasses are prescription, I turned around, she took, checked it and said OK and when I received my new one, there I am with SUN glasses on...
(I don’t ‘like’ it but 3 different DMVs, and a few assorted LEO told me ‘no problem’).....
I guess WE SHALL SEE...
Airport trip will tell the story.
At no point in history has any government ever wanted its people to be defenseless for any good reason ~ nully's son
Nut-job Conspiracy Theory Ping!
To get onto The Nut-job Conspiracy Theory Ping List you must threaten to report me to the Mods if I don't add you to the list...
Some of us do actually wear motorcycle helmets daily. :P
Mostly to ride our motorcycles.
You protected the wrong half of your face. Facial ID works with datapoints that aren’t just around the eyes.
I was just pointing out that the ‘fools’ took an ID photo with VERY DARK sunglasses on...
If you’re on Facebook you are already screwed. You gave up all your rights when you signed up.
One would think BUT I have gotten onto a very secure Fed Facility with it.
I did keep the old one, just in case....Kind of ‘afraid’ of getting stopped at 0dark30 and have some cop give me a bunch of crap...
i sense a good market opportunity for masks and disguises.
Defeated by a hijab or a burqa
That won't help either. Your gait can identify you almost as well as a fingerprint. The new orwellian world we are moving into is going to be a depressing place for the most part. Anyone who thinks you can prohibit the government or businesses for using this tech is dreaming and/or delusional.
Utah Data Center. They have a massive data file on you. So theres that.
There are more data points on the lower part of the face than on the area surrounded by sunglasses. On top of which, the better systems can identify a person with sunglasses or without.
I’m sure I’m in their databases. However, if they think knowing where I am helps them... They forget that can be used as a false trail too. Once they get too complacent, too used to their software picking you up...then when you really want to disappear...
Gait biometrics are considerably more difficult to use in crowded areas and are useless for those sitting or riding, though.
That said, makeup is definitely not enough.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.