Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age

By Laura K. Donohue. Full text here.

Federal interest in using facial recognition technology (FRT) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to novel questions of law and policy.

These technologies constitute what can be termed Remote Biometric Identification (RBI). That is, they give the government the ability to ascertain the identity (1) of multiple people; (2) at a distance; (3) in public space; (4) absent notice and consent; and (5) in a continuous and ongoing manner. RBI fundamentally differs from what can be understood as Immediate Biometric Identification (IBI)—i.e., the use of biometrics to determine identity at the point of arrest, following conviction, or in conjunction with access to secure facilities. IBI, in contrast, tends to be focused (1) on a single individual; (2) close-up; (3) in relation either to custodial detention or in the context of a specific physical area related to government activity; (4) in a manner often involving notice and often consent; and (5) is a one-time or limited occurrence. The types of legal and policy questions raised by RBI significantly differ from those accompanying IBI.

In the absence of a statutory framework, we are driven to constitutional considerations, where the Court’s jurisprudence proves inadequate as a way of addressing the concerns that present in the realm of RBI. The Fourth Amendment’s guarantee to protection against unreasonable search and seizure and the probable cause requirement for the issuance of warrants; the Fifth Amendment’s right against self-incrimination; the First Amendment’s protection of speech and assembly; and the Fifth and Fourteenth Amendments’ due process protections fail to account for the way in which such measures fundamentally challenge the current norms. The article calls for congressional action and a judicial framing commensurate with the threat posed by these new and emerging technologies.