There exists a Fourth Amendment gap in privacy law that allows for the use of facial recognition surveillance in public places by the police. The Fourth Amendment prescribes that no government official may search or seize a person or their belongings without a warrant for probable cause. The courts have debated upon the meaning of a “search” and a “seizure,” yet struggle to define the terms in the modern age as new surveillance technologies begin to emerge. The Supreme Court in Katz v. United States established that there must be a reasonable expectation of privacy in order to constitute a search under the Fourth Amendment. Justice Stewart explained that without an expectation of privacy, the police do not need a warrant to search anything under the Fourth Amendment. In his concurrence, Justice Harlan expanded on this by explaining that while Katz did not have an objective expectation of privacy in public, because he was inside a phone booth, he had a subjective expectation of privacy under the Fourth Amendment. Thus, this Court held that, without more, existing openly in public spaces does not meet the threshold of an expectation of privacy for the purposes of a Fourth Amendment search.
Subsequently, the Supreme Court has attempted to expand Fourth Amendment law to confront the issues of electronic surveillance. The Court in United States v. Jones was primarily concerned with the police’s ability to warrantlessly track Jones for about a month through a GPS tracker placed on his car. In Carpenter v. United States, the Court held that the police could not access cell site location data of a potential suspect without a warrant because the data contained location information from over several years and the search specifically targeted one person. In Riley v. California, the Court ventured further and held that the warrantless search of an arrestee’s cell phone incident to arrest violated the Fourth Amendment because citizens have a reasonable expectation of privacy in their cell phones due to the quantity and quality of information that a single cell phone can contain. These Supreme Court decisions all send a clear message: long-term targeted electronic surveillance tracking is prohibited under the Fourth Amendment.
However, the Court’s decisions have left a gap for what some scholars call “panvasive surveillance”: mass surveillance techniques, such as indiscriminately placed security cameras, that are pervasive and invasive affecting a large number of innocent people. This has allowed for some police departments to install mass surveillance systems in their cities, including software that analyzes crime patterns and uses facial recognition. This modern surveillance system is unlike the surveillance tactic used in United States v. Jones as today’s system is not directly tracking one person but rather passively recording anyone who happens to pass in front of the camera and storing that footage. When a crime occurs, police retrieve the face captured from the footage, run the face through software that cross-references with prior arrest photos, and eventually match it with all open-source images across the internet. While the surveillance systems allow for certain levels of tracking, as long as it does not target a single individual over a long period of time without a warrant, it falls outside of the scope of current Fourth Amendment jurisprudence. By existing beyond the Fourth Amendment, the police can do this surveillance practice without a warrant, while providing little to no legal recourse for those potentially wrongly affected by this practice.
As the Court stated in Katz and later reaffirmed, there is no expectation of privacy when existing in public. Unlike in Jones, where the officer physically places a GPS tracker on the suspect’s car, modern surveillance systems are not physically trespassing on specific individuals because the systems involve merely placing and pointing a camera in a public location. Furthermore, the Court’s reasoning in Carpenter would not apply to modern surveillance as modern surveillance is not meant to be used to track individuals over a long period of time.
In the absence of regulation or an expansion of Fourth Amendment case law, the police have used modern surveillance and facial recognition software as a basis for probable cause leading to multiple wrongful arrests and convictions. The use of mass surveillance and video analytics has also led to an increase in predictive policing. Current Fourth Amendment law is not equipped to handle modern surveillance and the courts should expand on the meaning of a Fourth Amendment “search” and “seizure” to truly include the realities of today’s technology. City councils, working with attorneys, have attempted to regulate local police use of electronic surveillance. However, issues are rising out of the local regulations as it fails to place proper enforcement measures for violating the procedures. With the increasing use of video analytics and facial recognition software, guidance from either the courts or legislatures is needed now more than ever.