By Matthew E. Cavanaugh. Full Text.
Facial recognition tracking is the use of facial recognition technology to track a person’s movements based on the appearance of their face at particular locations. It is one of many rapidly advancing technologies that are forcing a judicial reckoning with how the Fourth Amendment right against unreasonable searches applies to new surveillance technologies.
Use restrictions are one such possibility. The concept of use restrictions is the idea that a Fourth Amendment search can occur when data is used rather than only when that data is collected. Contemporary surveillance technologies are constantly collecting vast amounts of data that can then be stored and searched indefinitely. Use restrictions would apply constitutional scrutiny to such searches.
This Note argues courts should apply use restrictions to facial recognition tracking data. It describes how an unchecked facial recognition tracking apparatus could result in a level of government surveillance power that is untenable under the Fourth Amendment. The Note draws on the Supreme Court’s 2018 decision in Carpenter v. United States to argue that courts have already begun to move towards recognizing use restrictions and that facial recognition tracking is an opportunity to do so explicitly.