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  • Sasha Brisbon

Facial Recognition Failures

Updated: Oct 19, 2023

Facial Recognition is a technology capable of identifying (or verifying) a person from a digital image or a video frame from a video source. There are multiple methods in which facial recognition systems work, but in general, they work by comparing selected facial features from given images with faces within a database. Recent studies, however, highlight serious detrimental concerns which include the increasing production of false positives. Yet this technology has proliferated, spreading among law enforcement agencies, with very little or no restraints. As a result, the Fourth Amendment’s privacy rights have been center stage in recent debates over technology. For example, Andrew Ferguson, a professor at the University of the District of Columbia David A. Clarke School of Law stated “the Fourth Amendment will not save us from the privacy threat posed by facial recognition.” Instead, the solution is legislation that is future proof with an eye toward the growing scope, scale, and sophistication of surveillance systems. More specifically, Congress and state legislatures must address the risks through commonsense regulations comparable to the Wiretap Act.

Facial recognition is the automated process of comparing two facial images to determine whether they represent the same individual. Once a facial is detected, the algorithm extracts features from the facial, such as eye position or skin texture, that can be numerically quantified. The algorithm compares pairs of facials and issues a numerical score reflecting the similarity of their features. The problem, however, is that these programs do not produce binary “yes” or “no” answers. Instead, the algorithm identifies “more likely” or “less likely” matches, which law enforcement agencies use as candidates for further investigation.

According to the Georgetown Law Center on Privacy & Technology, over 117 million American adults are subject to facial scanning programs with their picture in a law enforcement database. The benefits of facial recognition are lucrative, but law enforcement agencies’ use of this software severely impacts an individual’s privacy, civil liberties, and civil rights. However, for the sake of law enforcement “protecting the people they are sworn to serve,” transparency and accountability are often set aside.

Facial recognition is used to catch violent criminals and fugitives. Each type of facial recognition use creates its own unique risk. For example, a facial recognition search to verify the identity of someone who has been legally stopped or arrested is different, in principle and effect, than an investigatory search of an ATM photo against a driver’s license database, or continuous, real-time scans of people walking by a surveillance camera. The former is targeted and public. The latter are generalized and invisible.

Moreover, law enforcement’s use of facial recognition is inevitable. However, despite its benefits, the continued lack of oversight to control potential abuses creates significant risks. For example, courts are increasingly finding that the fruits of searches and seizures also have a Fifth Amendment appetite. The Fifth Amendment is another critical consideration relating to the protection of information accessible only through biometric scans (such as fingerprint or facial recognition). Generally speaking, law enforcement’s ability to take fingerprints or otherwise assess a suspect’s physical characteristics, for investigative purposes, was standard practice. Nevertheless, the advent of smartphones with fingerprint-centric measures have offered opportunities for courts to reassess where searches might implicate the Fifth Amendment in addition to the Fourth.

The Fourth Amendment’s right to privacy focuses on the type of passcode used to determine whether the information in the cell phone is protected. This, however, is linked with the Fifth Amendment’s protection against self-incrimination, which provides that “no person shall be compelled in any criminal case to be a witness against himself.” In a Fifth Amendment analysis, the fundamental question is whether your facial or fingerprint is considered testimonial. In Doe v. United States, 487 U.S. 201,202 (1988), "the Supreme Court held an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information the privilege may be asserted only to resist compelled explicit or implicit disclosures of incriminating information." Courts, however, have repeatedly held that there is no Fifth Amendment protection against the production of blood samples, DNA, voice, or even fingerprint evidence. Such evidence is not considered testimonial because it does not require the declarant to say anything about what is going on in his mind. Additionally, in United States v. Wade, 388 U.S. 218 (1967), the Supreme Court held that requiring a defendant to speak during a lineup was not self-incrimination by distinguishing between the “compulsion of the accused to exhibit his physical characteristics” and the “compulsion to disclose any knowledge he might have.” Under the Court’s analysis, there was no Fifth Amendment violation when requiring a defendant to unlock his or her phone through facial recognition because using this feature seems to objectively be “exhibiting physical characteristics,” not disclosing further information.

There is no dispute that one’s face is a physical characteristic, but in the context of facial recognition, it is being used as the passcode itself. Arguably, a facial structure is being transformed from a simple physical trait to a communication that should be protected under the Fifth Amendment. I agree, of course, that it’s not reasonable to protect a defendant from being compelled to input a numerical passcode; however, to compel an individual to input their biometric passcode – I wholeheartedly disagree. An aggressive distinction between biometric data as a passcode and biometric data as a physical characteristic is vital in such cases. Most importantly, as newer technology services, consumers should be aware of the inverse relationship between these enhanced security measures and the legal protection of the contents of their phone.


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