FBI’S USE OF FACIAL RECOGNITION TECHNOLOGY–DOES IT PASS THE FOURTH AMENDMENT TEST?

The FBI is using facial recognition technology to find criminal suspects. In an initial experiment they are taking booking pictures of suspects and comparing them to the 30 million facial photographs in North Carolina’s driver’s license files.

Facial recognition technology works by comparing approximately 80 landmarks or nodal points such as distance between the eyes, width of the nose, depth of the eye sockets, the shape of the cheekbones, and the length of the jaw line on each face. They are measured creating a numerical code, called a faceprint. This should create a unique numerical description. To verify the results skin biometrics are used which compare the unique skin textures.

The question is whether or not the search of the North Carolina driver’s licenses violates the Fourth Amendment. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Well the search is certainly without probable cause. Nor is it “supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But the question is whether it is reasonable. It is certainly only a minor intrusion into a person’s privacy. The vast majority of people will never know that their picture has been scanned. On the other hand Congress and the states have done much in recent years to attempt to maintain the privacy of driver’s license records and as a result people have an expectation of privacy in the records. But does that expectation include the right not to have law enforcement officers use the information found on one’s driver’s license. Probably not. We know that at least with probable cause a law enforcement officer can pull a vehicle over and demand to see the driver’s license. But that is with probable cause. But no expects there to be probable cause before an investigating officer looks at a rap or looks up a driving record.

Another point–this is not DNA or fingerprint testing. It is not nearly as precise. It narrows down the number of suspects but the final weeding must be done by a human being. A test of the technology at Boston’s Logan Airport was only 61.4 per cent accurate. Some factors which prevent a perfect recognition are significant glare on eyeglasses or wearing sunglasses, long hair obscuring the central part of the face, poor lighting that would cause the face to be over- or under-exposed, and lack of resolution (image was taken too far away).

As of now there are no appellate decisions testing the use of facial recognition technology. But we will be looking for test in the relatively near future.