Facial Recognition and the Fourth Amendment

By Andrew Guthrie Ferguson. Full Text.

Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling.

This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment—designed to restrain police power and enacted to limit governmental overreach—would have something to say about this powerful and permeating surveillance technology. But current doctrine and constitutional theory offer little privacy protection and less practical security than one might expect. Even worse, by studying the Fourth Amendment through the lens of facial recognition technology other doctrinal limitations come into focus. Issues of error rates, racial bias, unfairness, and transparency in policing more generally become magnified when trying to design a new surveillance system for law enforcement.

The Article then offers a constitutional design solution to some forms of facial recognition surveillance. The Supreme Court’s recent cases on digital technologies suggest a way to “future-proof” the Fourth Amendment in the face of certain types of mass surveillance technologies. In addition, this Article suggests a legislative framework for facial recognition to fill in the privacy and legitimacy gaps left by the current Fourth Amendment doctrine.