Big Brother is Watching: Law Enforcement's Use of Digital Technology in the Twenty-First Century

University of Cincinnati Law Review University of Cincinnati Law Review

Volume 89 Issue 1 Article 2

October 2020

Big Brother is Watching: Law Enforcement's Use of Digital Big Brother is Watching: Law Enforcement's Use of Digital

Technology in the Twenty-First Century Technology in the Twenty-First Century

Samuel D. Hodge Jr.

Temple University

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Samuel D. Hodge Jr.,

Big Brother is Watching: Law Enforcement's Use of Digital Technology in the Twenty-

First Century

, 89 U. Cin. L. Rev. 30 (2020)

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BIG BROTHER IS WATCHING: LAW ENFORCEMENT’S USE

OF DIGITAL TECHNOLOGY IN THE TWENTY-FIRST CENTURY

Samuel D. Hodge, Jr.

There was of course no way of knowing whether you

were being watched at any given moment.

- George Orwell, 1984

“Big brother is watching” is a phrase coined by George Orwell in his

novel 1984. This saying describes the government’s surveillance of its

citizens with electronic listening devices and cameras in a jurisdiction

where Big Brother is the head of a totalitarian administration.

The phrase

depicts an attitude in which no one is beyond the reach of a prying

government that uses digital cameras with facial recognition software and

may result in the incarceration of anyone who opposes the regime.

Penned by Orwell in 1947, the fictionalization was meant to provide a

forum to discuss “surveillance, police states and authoritarianism.”

than seventy years later, the book has proven to be prophetic. The same

technological breakthroughs that have changed our lives have also

produced detailed records of our daily lives.

To protect society against the dangers presented by terrorism, the

government has demonstrated a profound desire to secure as much data

as possible and to utilize that digital information for a variety of

purposes.

This article will examine some of the innovations used by law

enforcement for observation and identification purposes, such as video

surveillance, drones, automated license plate readers, and facial

recognition software. Though each tool is different, the legal issues

. Samuel D. Hodge, Jr. is an award winning professor at Temple University where he teaches

law, anatomy and forensics. He is also a member of the Dispute Resolution Institute where he serves

as a mediator and neutral arbitrator. He is one of the most published scholars in medical/legal matters

and has authored more than 180 articles in medical and legal journals and has written ten texts

including The Forensic Autopsy. He also enjoys an AV preeminent rating and has been named a top

lawyer in Pennsylvania on multiple occasions. The author wishes to thank Nallely Barbosa, a recent

graduate of the Temple University Beasley School of Law and a teaching assistant for Professor

Hodge, for her invaluable research and editorial assistance.

. Big Brother is Watching You, LITERARY DEVICES, https://literarydevices.net/big-brother-is-

watching-you/ Z (last visited Nov. 28, 2019).

. Id.

. Matthew Feeney, Seventy Years Later, It’s Still ‘1984’, CATO INSTITUTE (JUNE 5, 2019),

https://www.cato.org/publications/commentary/seventy-years-later-its-still-

1984?gclid=Cj0KCQiA2vjuBRCqARIsAJL5a-

KKoOpz0zDd5WcM2avykIIvE_pz4qeeI05VB_hPCBIgAaF7thCii1waAtgaEALw_wcB.

. Neil M. Richards, The Dangers of Surveillance, 126 HARV. L. REV. 1934, 1934 (2013).

. Id.

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involving the various forms of digital technology are relatively similar.

I. VIDEO SURVEILLANCE

Members of society are observed through surveillance equipment in

many settings such as the streets, banks, casinos, stores, and shopping

malls.

Routine monitoring takes place as we drive a vehicle or walk along

a sidewalk, thereby offering a comprehensive picture of our private lives.

Roughly three-quarters of small businesses record those who enter their

premises

and closed-circuit television (CCTV) systems even allow law

enforcement officials to detect, prevent, and investigate assaults and to

discover crimes against property.

The first use of cameras for surveillance purposes occurred in England

in 1986 where the equipment was installed in a one-square-mile area in

the town of King’s Lynn.

Today, England is the worldwide leading user

of closed-circuit monitoring systems with one-half million cameras in its

network. Several years later, a few cities in the United States, such as

Philadelphia, Chicago, and New York, followed England’s lead and

started installing surveillance cameras in public areas.

For instance,

Chicago maintains about 3,700 surveillance cameras and has access to

more than 32,000 others which can be monitored at police districts, public

safety headquarters, and other law enforcement locations.

The City also

utilizes cameras on police and fire boats, helicopters, SUVs, trailers, and

command vehicles.

Nationally, the use of surveillance equipment is

even more dramatic. Approximately 30 million cameras are employed in

the United States filming 4 billion hours of footage a week. Needless to

say, Big Brother is watching almost everywhere and most of the time.

. JERRY RATCIFFE, VIDEO SURVEILLANCE OF PUBLIC PLACES (Center for Problem-Oriented

Policing, Response Guide No. 4, 2006), available at https://popcenter.asu.edu/content/video-

surveillance-public-places-0.

. Amanda Li, Top 8 Pros and Cons of Surveillance Cameras in Public Places, REOLINK (Aug.

28, 2019), https://reolink.com/pros-cons-of-surveillance-cameras-in-public-places/.

. Ratciffe, supra note 7.

. Qasim Mahmood Rajpoot & Christian Damsgaard Jensen, Video Surveillance: Privacy Issues

and Legal Compliance, DTU (2015),

https://backend.orbit.dtu.dk/ws/portalfiles/portal/110934780/Video_Surveillance_Privacy_issues_

and_legal_compliance.pdf.

. Cristen Conger, Do Police Cameras Reduce Crime, HOW STUFF WORKS,

https://electronics.howstuffworks.com/police-camera-crime.htm (last visited Dec. 1, 2019).

. Id.

. Scott Goldfine, 32K Surveillance Cameras Aim to Keep Chicago Safe, CAMPUS SAFETY (Oct.

31, 2018), https://www.campussafetymagazine.com/technology/surveillance-cameras-keeping-

chicago-safe/.

. Id.

. James Vlahos, Surveillance Society: New High-Tech Cameras Are Watching You, POPULAR

MECHANICS (Oct. 1, 2009), https://www.popularmechanics.com/military/a2398/4236865/.

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32 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

This surveillance will only increase as the price of equipment falls,

making it feasible to assemble a heretofore unimaginable quantity and

quality of data.

The bottom line is that society is moving towards an

environment in which a person’s every move and transaction is recorded

by a computer or system.

These recorded observations are not limited to police use. Consumer

spending for home surveillance equipment, such as doorbell cameras, will

grow into a $9.7 billion industry by 2023.

This development has

resulted in private outdoor cameras on homes becoming an emergent law

enforcement tool.

For example, 400 police departments have partnered

with one doorbell camera company to gain access to its footage to assist

in solving home thefts, vehicle break-ins, and other crimes.

The

widespread use of such equipment has also made it standard police

practice to search for video cameras in the area of a reported crime,

making them important tools for fighting criminality and gradually

supplanting neighborhood watch groups and its legion of invisible street

guardians.

A. Video Surveillance Equipment

Video surveillance equipment consists of a camera that is usually

hooked up to a recording device or IP network. This video data is then

arranged into a searchable database through biometric software, thereby

making the viewing process more efficient for law enforcement

purposes.

The cameras can also be armed with motion-detecting

sensors, which vastly diminish the amount of data and further enhance the

efficiency of the viewing task.

The equipment is now so sophisticated

that cameras permit users to take advantage of “satellite-based optics” that

allow the observer to see in the dark, visualize words on a page hundreds

. Id.

. T.J. McCue, Home Security Cameras Market to Surpass $9.7 Billion By 2023, FORBES

(Jan. 31, 2019), https://www.forbes.com/sites/tjmccue/2019/01/31/home-security-cameras-market-

to-surpass-9-7-billion-by-2023/#3f3bea523c2b.

. Watchful Help or Harm?: Police Access Home Surveillance Cameras To Solve Crimes,

PITTSBURGH POST-GAZETTE (Sep. 30, 2019), https://www.post-

gazette.com/opinion/editorials/2019/09/30/Home-surveillance-cameras-Ring-Amazon-

police/stories/201909280013.

. Id.

. Faith Karimi, Home Surveillance Cameras Are The New Neighborhood Watch, CNN (Aug.

31, 2018), https://www.cnn.com/2018/08/30/us/home-surveillance-cameras-neighborhood-

watch/index.html.

. Jack Giordano, VIDEO EVIDENCE: LEGAL STANDARDS & PRACTICAL CONSIDERATIONS (2017),

available at 2017 WL 6944772.

. Id.

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of feet away, and look into buildings.

B. Benefits of Surveillance Cameras

Surveillance cameras in public places have the benefit of identifying

the perpetrator of a crime.

The Boston Marathon bombing provides an

example. The government was able to release images of the two suspects

from a surveillance camera installed on the outside wall of a department

store just three days after the attack.

The technology can also provide a

feeling of enhanced safety. The cameras can visualize a large area or focus

on a specific location known for criminal activity. The technology may

even act as a deterrent in stopping an offense if the criminal knows that a

camera is filming the location.

The footage can also protect the innocent

by preventing the police from identifying and arresting the wrong

individual.

In a legal setting, the footage provides a very strong piece of evidence

since it is nearly impossible to maintain that a suspect captured on an

image is not the perpetrator of the crime.

Surveillance cameras can also

prevent fraud and made-up stories. For example, a video recording of an

alleged crime or motor vehicle accident can easily disprove a fraudulent

claim, thereby freeing up valuable investigative time.

C. Criticisms of Surveillance Cameras

A variety of challenges have attacked the use of video surveillance

systems, including concerns about the databases that store the video

footage, the failure to enact standards regulating the retention and use of

the data collected, and the risk for geolocation tracking without necessary

oversight.

Unfortunately, there is a paucity of laws on the use of

surveillance cameras in public places, and only a small number of

jurisdictions have enacted legislation to regulate these activities. New

York’s statute, for example, provides that law enforcement officials may

only use this technology as part of an investigation of suspected criminals

after obtaining a warrant from the court.

. Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and The Right

to Anonymity, 72 MISS. L.J. 213, 220 (2002).

. Li, supra note 8.

. Id.

. Security Cameras in Public Places: A Good or Bad Thing?, TITAN ALARM (Oct. 3, 2017),

https://titanalarm.com/security-cameras-in-public-places-a-good-or-bad-thing/.

. Id.

. Kimberly Winbush, Annotation, Use of License Plate Readers, 32 A.L.R.7th Art. 8, § 2 (2017).

. Li, supra note 8.

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34 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

Surprisingly, the widespread employment of video cameras has not

reduced crime and its use is not embraced by all people.

For instance,

one study revealed that closed-circuit camera systems did not generate

“enough bang for the buck.”

While Federal and state governments have

spent millions to install and maintain these systems, the study

demonstrated that the equipment was underemployed and not properly

assimilated into police strategies.

Another major criticism of video surveillance is its potential for abuse

by law enforcement. A story in the Detroit Free Press supports this

concern, revealing that law enforcement officials in Michigan used the

equipment to assist both themselves and their friends stalk females,

threaten motorists after traffic incidents, and track former spouses or

partners.

The technology also raises privacy concerns, since

advancements in surveillance equipment often outpace changes in the law

regulating new developments.

While Society is indeed exposed to serious security challenges, placing

cameras in public areas is not universally accepted as a method of

safeguarding the public. Cameras in public areas will inevitably film

innocent individuals who have no intention of committing a crime and

some feel that this constitutes an invasion of privacy.

Some would rather

preserve their privacy than feel that “Big Brother” is watching their every

move.

The Fourth Amendment is designed to protect against unreasonable

search and seizure, and additional safeguards are derived from legislation

and case law.

However, it may take years before the courts or

legislatures address the thorny issues raised by privacy concerns, as new

developments in video technology continue to develop on a rapid and

regular basis.

Questions are also expressed about how the footage is

being stored and protected, who has access to the images, under what

circumstances can it be retrieved, and whether it can be coupled with other

. What's Wrong With Public Video Surveillance?, ACLU, https://www.aclu.org/other/whats-

wrong-public-video-surveillance (last visited Nov. 28, 2019).

. Conger, supra note 11.

. Id.

. Id. In 1998, a police lieutenant From D.C. Was Criminally Charged For “Extorting Money

from Customers of a Gay Bar.” The Evidence Revealed That He Wrote Down the License Plate

Numbers of Those Visiting the Bar and Bribed Them into Paying Him Money by Threatening “To

Expose Their Lifestyle.” Lauren Fash, Comment, Automated License Plate Readers: The Difficult

Balance of Solving Crime and Protecting Individual Privacy, 78 MD. L. REV. ONLINE 63 (2019).

. Allyssa Nielson, Video Surveillance Threatens Privacy, Experts Say, DAILY UNIVERSE (June

28, 2017), https://universe.byu.edu/2017/06/28/video-surveillance-threatens-privacy/.

. Security Cameras in Public Places: A Good or Bad Thing?, supra note 27.

. Id.

. Nielson, supra note 36.

. Id.

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materials to create a profile of a person.

D. Video Surveillance and the Fourth Amendment

Video surveillance is one of the most intrusive types of searches

performed by the government,

and the courts will consider the

expectations of society when measuring its constitutionality.

One court

indeed observed that “[t]his type of surveillance provokes an immediate

negative visceral reaction: indiscriminate video surveillance raises the

specter of the Orwellian state.”

Generally speaking, the courts have not deemed video surveillance of

a public area to be a search since the person being observed fails to have

a reasonable expectation of privacy.

State v. Augafa provides an

example in which the court found that video surveillance of a public area

is not an invasion of privacy, nor is it a violation of the Fourth

Amendment against unreasonable search and seizure.

In Augafa, the

defendant was filmed selling drugs on a public sidewalk. Since this illegal

activity was observed in “open view,” no reasonable expectation of

privacy was applicable, and the surveillance was not within the ambit of

the Constitution.

The Intermediate Court of Appeals of Hawaii noted

that a privacy test requires the court to decide “whether a person's

expectation of privacy under any particular set of circumstances may be

deemed reasonable.”

A violation of the Fourth Amendment only occurs

when it can be shown that an actual, subjective expectation of privacy is

present, and that the expectation is one that society acknowledges as being

objectively reasonable.

In another case, a federal district court found that the installation of two

video cameras by the police—one on a pole outside an apartment building

and one in a hallway—is not a search under the Fourth Amendment.

noted: “The Fourth Amendment protects the right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.”

This guarantee is linked to the notion of a

common law trespass and considers whether the police secured

. Id.

. United States v. Cuevas–Sanchez, 821 F.2d 248, 250–51 (5th Cir. 1987).

. Id. at 251.

. Id.

. Florida v. Riley, 488 U.S. 445, 449 (1989).

. State v. Augafa, 992 P.2d 723, 725 (Haw. Ct. App.1999).

. Id. at 734.

. Id. at 733.

. Id.

. United States v. Kelly, 385 F. Supp. 721, 727 (E.D. Wis. 2019).

. Id. at 726.

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36 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

information by physically intruding upon a constitutionally

protected area.

This concept was later transformed into one that protects

people and their reasonable expectation of privacy.

In this regard, the

court held that a tenant does not enjoy a reasonable expectation of privacy

in the common areas of an apartment building.

Several courts have considered whether long-term video

surveillance of a house from a pole camera constitutes a “search” under

the Fourth Amendment.

These courts have generally found that such a

practice is constitutional because “a pole camera only captures events that

a police officer or utility worker situated on the pole could see.”

The

decisions have found that extended police observation from a pole camera

is deemed irrelevant to their “search” analysis.

For example, in U.S v.

Houston, the Sixth Circuit Court of Appeals ruled that video surveillance

performed over ten weeks from a utility pole 200 yards away from a

property did not violate the defendant’s reasonable expectation of privacy

because the camera recorded the same view that a passerby would have

from the street.

Since government agents could have been positioned

24-hours a day to watch the property, the fact that a camera was used to

conduct the surveillance fails to make it unconstitutional.

A contrary result was reached in People v. Tafoya, where a Colorado

appellate court found it unconstitutional for the police to have placed a

video camera on a pole near the defendant’s house to surveil it over a

lengthy period.

This camera continually observed the property,

including an area behind the owner’s fence, for more than three

months.

Based on these prolonged observations, the police obtained a

warrant to search the defendant’s property where they found a cache of

drugs.

The court acknowledged that it would have been permissible for

an officer to climb to the top of the utility pole and look over the

defendant’s fence with binoculars or with a telescopic camera. However,

it was improper to install a video camera that allowed the police to

perform continuous surveillance of the property, including the space

. Id.

. Id. at 727.

. People v. Tafoya, No. 17CA1243, 2019 Colo. App. LEXIS 1799, at *13 (Colo. App. Nov. 27,

2019).

. Id. at *12-13.

. Id. at *13-14.

. United States v. Houston, 813 F.3d 282 (6thCir.2016).

. Id. at 288.

. Tafoya, 2019 Colo App. LEXIS 1799, at *25-26.

. Id. at *1.

. Id. at *1-2.

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behind the owner’s privacy fence, from the police station for more than

three months.

The court opined that “unfettered use

of surveillance technology could fundamentally alter the relationship

between our government and its citizens.”

This type of conduct, the

court determined, is inconsistent with an open and free society.

A more difficult Fourth Amendment determination occurs when video

surveillance is conducted in a private setting. The following two cases

illustrate the problem. In Hernadez v. Hillsides, Inc., an employer was

found not to have committed tortious invasion of privacy when it set up a

hidden camera in the office of two employees to ascertain who was

viewing pornographic websites at night in a residential facility for abused

and neglected children.

The California Supreme Court determined that

while a jury could conclude that the employer intruded upon the workers’

reasonable privacy expectations, the intrusion was not highly offensive or

egregious enough to violate prevailing social norms. Activation of the

video system was restricted to the night when the plaintiffs were

working.

A contrary result was reached in Carter v. County of Los Angeles where

a hidden camera was placed in a fake smoke detector.

A report had

been made that one of the Department of Public Works’ employees had

engaged in a sexual act with a visitor in the dispatch room.

A hidden

camera installed in that area captured inappropriate conduct by several

employees with visitors.

The plaintiffs eventually discovered the camera

and claimed that their Fourth Amendment rights against unreasonable

search and seizure were violated by the secret recordings.

A federal

district court agreed and noted that the employees’ belief that “they were

free from video surveillance was reasonable.”

They worked in a secure,

private, and often solitary room that was used for work and off-duty

activities like eating and napping.

While employers have many tools

available to investigate allegations of worker wrongdoing, covert

video surveillance is not one of them.

. Id. at *25-26.

. Id. at *15.

. Id. at *16.

. Hernadez v. Hillsides, Inc., 211 P.3d 1063, 1066 (Cal. 2009).

. Id. at 1082.

. Carter v. County of L.A., 770 F. Supp. 2d 1042, 1046 (C. D. Cal. 2011).

. Id. at 1045-46.

. Id. at 1046.

. Id. at 1047.

. Id. at 1049.

. Id. at 1047.

. Id. at 1050.

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38 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

II. AUTOMATIC LICENSE PLATE READERS

The automated license plate reader (“ALPR”) is the most employed

law enforcement surveillance tool.

The system consists of high-speed

cameras that photograph each license plate that passes by the devices

and operates on infrared and visual light spectrums so that the plates can

be read at all times.

These readers can be placed anywhere from police

vehicles to stationary objects like poles, traffic lights, and overpasses.

As noted by the Supreme Court of Ohio in State v. Hawkins:

A license-plate reader is a computer-controlled camera system installed in

some law-enforcement vehicles. The cameras, which are mounted to the

trunk of the vehicle, capture images of the license plates of cars nearby.

The system beeps to alert the officer that a plate has been captured, and an

image of the plate is displayed on the computer's screen.

ALPRs can image about 2,000 license plates per minute on vehicles

going about 120 miles per hour.

Apps are even available that permit beat

cops to scan license plates with their smartphones.

In turn, the images

are transmitted and analyzed by a computer that identifies the owner of

the vehicle, affixes a time and location stamp, and uploads the images to

a central server.

A. Police Use of ALPRs

ALPRs permit law enforcement to identify and record a vehicle’s

whereabouts in real-time and determine its prior locations.

Generally,

the system will compare each license plate number against “hotlists” to

sound an instant warning when a match or “hit” appears.

It can also

. Dave Maass, The Four Flavors of Automated License Plate Reader Technology, ELECTRONIC

FRONTIER FOUND. (Apr. 6, 2017), https://www.eff.org/deeplinks/2017/04/four-flavors-automated-

license-plate-reader-technology.

. Id.

. Kelsey D. Atherton, License Plate Readers Are Photographing You Everywhere, POPULAR

SCI. (June 27, 2013), https://www.popsci.com/technology/article/2013-06/license-plate-readers-

automatically-create-big-data/.

. You Are Being Tracked, ACLU 4 (July 2013), https://www.aclu.org/files/assets/071613-aclu-

alprreport-opt-v05.pdf.

. State v. Hawkins, 158 Ohio St. 3d 94, 95, 2019-Ohio-4210, 140 N.E.3d 577.

. Justin Rohrlich, In Just Two Years, 9,000 of These Cameras Were Installed to Spy on Your

Car, QUARTZ (Feb. 5, 2019), https://qz.com/1540488/in-just-two-years-9000-of-these-cameras-

were-installed-to-spy-on-your-car/.

. You Are Being Tracked: How License Plate Readers Are Being Used To Record Americans’

Movements, supra note 78, at 4.

. Maass, supra note 75.

. Id.

. You Are Being Tracked, supra note 78, at 2.

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retrieve vast amounts of information from the National Crime

Information Center on vehicles and license plates, which in turn can

identify wanted persons, protection from abuse orders, missing persons,

gangs, suspected terrorists, and immigration violators.

Other

applications include the ability to verify witness descriptions of vehicles

and identify cars that were near a specific site.

In turn, this data can be

stored for weeks, months, or years.

Notably,

most license plate numbers imaged by these systems do not match stolen

vehicle lists and have no apparent link to any crimes, AMBER alerts, or

warrants.

Studies estimate that the number of license plate scans linked

to a crime is only around 0.2 percent.

B. Legal Issues with ALPRs

The use of ALPRs creates legal issues because the data is stored on a

computer that is often linked with regional sharing systems, thereby

creating huge databases of driver location information. This information

is frequently retained and shared with others with few restrictions on how

it can be used.

Critics maintain that this technology presents major

privacy and “other civil liberties threats.”

The Fourth Amendment and its interpretation by the courts controls

how government officials can accumulate data obtained by ALPRs.

The

litmus test for what constitutes an unlawful search was established by the

Supreme Court in Katz v. United States where the Court stated “the Fourth

Amendment protects people, not places. What a person knowingly

exposes to the public, even in his own home or office, is not a subject of

Fourth Amendment protection.”

The harm caused by one scan seems minuscule.

The rub is that the

. Julia M. Brooks, Drawing the Lines: Regulation of Automatic License Plate Readers in

Virginia, 25 RICH. J.L. & TECH. 3, 2019, at P3.

. Nat’l Ass’n of Criminal Defense Lawyers, Automated License Plate Readers (2016), available

at https://www.law.berkeley.edu/wp-content/uploads/2015/04/2016-4-28_ALPR-Primer_Final.pdf.

. Id.

. Am. Civil Liberties Union Found. v. Superior Court, 400 P.3d 432, 435 (Cal. 2017).

. Stephanie Foster, Should the Use of Automated License Plate Readers Constitute A Search

After Carpenter v. United States?, 97 WASH. U. L. Rev. 221, 226-27 (2019).

. Nat’l Ass’n of Criminal Defense Lawyers, supra note 86.

. Id.

. Scott Bomboy, Police Photos of Your License Plates and the Fourth Amendment, YAHOO! NEWS

(July 19, 2013), https://www.yahoo.com/news/police-photos-license-plates-fourth-amendment-

132009696.html?guccounter=1.

. Katz v. United States, 389 U.S. 347, 351 (1967).

. Michael Fisher, Ohio Is Jonesing for Automatic License Plate Readers: Why This May Violate

Your Fourth Amendment Rights and What the Ohio Legislature Should Do About It, 64 CLEV. ST.

L. REV. 329, 330 (2016).

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40 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

use of cameras coupled with the widespread sharing of that information

provides law enforcement with the ability to put together the separate

puzzle pieces of where people have been into a single, high-resolution

snapshot of their lives.

Studies of jurisdictions that utilize license plate

recognition systems show that Fourth Amendment concerns are not out

of line. One study revealed that for every one million license plates

scanned in Maryland during one year, only forty-seven were theoretically

related to “serious crimes.”

Even though many states have the same low

hit rate, law enforcement still collects and stores the data associated with

these non-hit scans.

Therefore, license plate reader databases provide

the opportunity for institutionalized abuse by allowing anyone who has

access to the information to snoop into an individual’s daily activities,

habits, or present and past relationships.

The American Civil Liberties Union and the Electronic Frontier

Foundation maintain that these systems permit local, state, and federal

agencies to follow the habits and locations of innocent individuals. They

further assert that this data gathering constitutes an invasion of privacy

and may be utilized to manipulate or exploit citizens if the surveillance

data lands in the wrong hands.

ALPRs can also be utilized for

discriminatory targeting. A law enforcement official who manually

inserts information on a biased basis can check more license plates of a

particular ethnic or racial group than he or she would without the

technology.

100

C. Court Decisions involving ALPRs

No reported decision exits on the validity of protracted location

tracking using an ALPR. However, there are several federal and state

court opinions that have determined that single-instance database checks

of license plate numbers do not qualify as searches under the Fourth

Amendment.

101

For example, the Ninth Circuit Court of Appeals ruled in

U.S. v. Diaz Castaneda that a license plate check was not a search under

the Fourth Amendment.

102

In this case, the police officer did not have any

reason to conduct the license plate check. Nevertheless, the court noted

that individuals do not enjoy a subjective expectation of privacy in their

. You Are Being Tracked, supra note 78, at 2.

. Fisher, supra note 94, at 331.

. Id.

. You Are Being Tracked, supra note 78, at 2.

. Things to Know About Automatic License Plate Readers, PHYS.ORG (Sep. 15, 2015),

https://phys.org/news/2015-09-automatic-plate-readers.html.

100

. You Are Being Tracked, supra note 78, at 9.

101

. Nat’l Ass’n of Criminal Defense Lawyers, supra note 86.

102

. United States v. Diaz-Castaneda, 494 F.3d 1146, 1148 (9thCir. 2007).

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license plates, and even if they did, the court concluded that society would

not recognize this belief as reasonable.

103

License plates are visible on a

car’s exterior for anyone to see and are intended to provide information

about a vehicle to the police and others.

104

It is not reasonable for a person

to believe that his expectation of privacy has been breached when an

officer sees what is visible and uses that information to check the status

of the vehicle and its registered owner.

105

A chink in the armor occurred in Neal v. Fairfax County Police

Department when the Supreme Court of Virginia was asked to decide

whether “the retention of information gathered and stored by a

police department using an automated license plate reader” violated the

state’s Government Data Collection and Dissemination Practices Act.

106

This law is designed to “ensure safeguards for personal privacy by

government agencies.”

107

The plaintiff maintained that the police

department’s use of license plate readers violated the provision that

information should not be gathered “unless the need for it has been clearly

established in advance” of collecting that data.

108

Initially, the court noted that a license plate number by itself is merely

a mixture of letters and numbers “that [do] not describe, locate or index

anything about anyone.”

109

However, the images and data linked to each

plate represent “personal information” as defined by the statute.

110

The

pictures reveal not only the plate’s number but the vehicle and the

surrounding area. This data coupled with the GPS location, time, and date

when the images were filmed “afford a basis for inferring personal

characteristics, such as . . . things done by or to the individual who owns

the vehicle, as well as a basis for inferring the presence of the individual

who owns the vehicle in a certain location at a certain time.”

111

Therefore,

it was logical to infer that the image and related data is “personal

information” as contemplated by “the legislature’s intent to remedy the

potential mischief posed by the extensive collection, maintenance, use

and dissemination of personal information and the potential for misuse of

such information.”

112

The court remanded the case for further action

103

. Id. at 1151.

104

. Id.

105

. Id.

106

. Neal v. Fairfax Cnty. Police Dept, 812 S.E.2d 444, 445 (Va. 2018).

107

. Id. at 339.

108

. Id.

109

. Id. at 346.

110

. Id.

111

. Id. at 346-47.

112

. Id. at 347. See also United States. v. Ellison, 462 F.3d 557 (6th Cir. 2006); United States v.

Matthews, 615 F.2d 1279, 1285 (10th Cir. 1980); United States v. Walraven, 892 F.2d 972 (10th

Cir. 1989); Olabisiomotosho v. City of Hous., 185 F.3d 521 (5th Cir. 1999); United States v.

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42 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

consistent with its decision.

113

One year later, the Circuit Court of Virginia reconsidered the issue.

114

While the ALPR record-keeping procedure does not per se "identify

particulars" of a vehicle owner, it does permit law enforcement to link the

information with the identity of an individual.

115

“In other words, access

to the license plate number stored in the ALPR system ‘permit[s]

connection’ to the identity of the vehicle's owner with a few clicks on the

screen, all from the driver's seat of a police cruiser.”

116

Therefore, the

ALPR record-keeping process is a "passive use" as defined by the Data

Act and a violation of the statute.

117

The court granted the plaintiff’s

request for an injunction barring law enforcement officials from

photographing and storing random license plate data unless the plate was

scanned according to “investigations of suspected criminal activity.”

118

This decision has been hailed as a victory for data privacy rights

advocates in their battle over the utilization of digital technologies by the

police and other government officials.

119

According to the National Conference of State Legislatures,

120

sixteen

states have enacted statutes on ALPRs: Arkansas,

121

California,

122

Colorado,

123

Florida,

124

Georgia,

125

Maine,

126

Maryland,

127

Minnesota,

128

Sparks, 37 Fed. Appx. 826, (8th Cir. 2002); and Hallstein v. City of Hermosa Beach, 87 Fed. Appx.

17 (9th Cir. 2003).

113

. Id. at 350.

114

. Neal v. Fairfax Cnty. Police Dep’t, Case No. CL-2015-5902, Letter Opinion, Judge Robert J.

Smith (Apr. 1, 2019), available at https://assets.documentcloud.org/documents/5805797/Opinion-

190401-Alpr-Petition-Granted.pdf.

115

. Id. at 5.

116

. Id.

117

. Id.

118

. Cathy Wu, Neal v. Fairfax County Police Department: Use of Automatic License Plate Reader

Violates Data Privacy Law, JOLTDIGEST (Apr. 22, 2019), https://jolt.law.harvard.edu/digest/neal-

v-fairfax-county-police-department-use-of-automatic-license-plate-reader-violates-data-privacy-

law.

119

. Id.

120

. Automated License Plate Readers: State Statutes, NCSL,

http://www.ncsl.org/research/telecommunications-and-information-technology/state-statutes-

regulating-the-use-of-automated-license-plate-readers-alpr-or-alpr-data.aspx (last visited Nov. 30,

2019).

121

. Id.

122

. Id.

123

. Id.

124

. Id.

125

. Id.

126

. Id.

127

. Id.

128

. Id.

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Montana,

129

Nebraska,

130

New Hampshire,

131

North Carolina,

132

Oklahoma,

133

Tennessee,

134

Utah

135

and Vermont.

136

The specifics of

these laws differ depending upon the jurisdiction and objective of the

state.

Maine and New Hampshire have the most restrictive laws concerning

the use of ALPR systems.

137

For example, New Hampshire’s law

prohibits the use of ALPR cameras and other systems that can determine

“the ownership of a motor vehicle or the identity of a motor vehicle's

occupants on the public ways of the state.”

138

However, cameras are

allowed for use in the operation of a toll collection system and when

related to the monitoring of a structure under the control of the state.

Arkansas follows a less restrictive approach, which disallows the use

of license plate cameras by public and private agencies but permits the

system to be employed by the police for ongoing investigations, by

parking enforcement entities, or for regulating access to secured

areas.

139

The statute also allows law enforcement to keep the data for up

to 150 days unless it is part of an ongoing investigation.

140

Other jurisdictions, such as Minnesota, only permit the use of its own

license plate database. However, a law enforcement agency may utilize

additional sources if the matter relates to an active criminal

investigation.

141

That data must be destroyed within thirty days unless the

data is related to a criminal investigation. Utah does not allow data to be

stored for more than twenty-one days.

142

Montana’s statute provides that

information gained by a license plate reader may only be used for official

law enforcement purposes to identify vehicles that are believed to be:

stolen; linked to a wanted, missing, or endangered individual; registered

to someone against whom there is an outstanding warrant; in violation of

commercial trucking laws; involved in specific criminal surveillance; part

of a major crime or incident; or in the vicinity of a recent crime and may

129

. Id.

130

. Id.

131

. Id.

132

. Id.

133

. Id.

134

. Id.

135

. Id.

136

. Id.

137

. Fisher, supra note 94, at 343.

138

. Id.

139

. Id.

140

. Id.

141

. MINN. STAT. §13.824 3(b) (2015).

142

. MAINE REV. STAT. §2117-A(5) (2013).

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44 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

be connected to that offense.

143

On the other hand, Florida’s law merely provides that an ALPR refers

to high-speed cameras combined with computer algorithms to convert

pictures of license plates into computer-readable data. In turn, the

Department of State, in consultation with the Department of Law

Enforcement, is tasked with creating a schedule for keeping records

containing pictures and data obtained through its system. This retention

must create a maximum time that the records may be retained.

144

Despite the various statutory limitations on the use of ALPRs, courts

may not automatically suppress evidence or an arrest just because the

ALPR statute is not strictly followed or if system guidelines are not

properly followed. In People v. Davila, the Supreme Court of New York

in Bronx County noted that the New York City Police Department uses

an image-processing technology system mounted on the top of police cars

to automatically identify vehicles by their license plates.

145

The plates are

then compared against a “hotlist” containing information about vehicles

that have been reported stolen, where registration or insurance coverage

has lapsed, or other similar violations of law.

146

If there is a match, an

alarm sounds on the laptop computer mounted in the vehicle, notifying

the officer of the problem.

147

NYPD guidelines consisted of a two-step process to safeguard the

reliability of license plate reader information. Initially, officers were

required to update the hotlist database with information from the last

twenty-four hours.

148

If the alarm sounded, before “initiating any law

enforcement action”, the officer had to look at the database to make sure

that the plate reader information is correct.

149

In Davila, the officer was

driving around in his patrol car but had not verified whether the hotlist

had been updated. A car then passed his cruiser and an alarm sounded

indicating that the car’s registration had been suspended.

150

The officers

approached the car and thought that the occupants were acting

suspiciously. One law enforcement agent saw a bulge in the defendant’s

trouser area and found a gun.

151

Upon questioning, the defendant claimed

that he had been in an earlier confrontation. After his arrest, the accused

moved to suppress the evidence related to the weapon.

152

The court

143

. MONT. CODE ANN. § 46-5-117(2)(d)(v) (2017).

144

. FLA. STAT. ANN. § 316.0778(2) (West 2014).

145

. People v. Davila, 901 N.Y.S.2d 787, 788 (Sup. Ct. 2010).

146

. Id. at 789.

147

. Id.

148

. Id.

149

. Id.

150

. Id. at 790.

151

. Id.

152

. Id.

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denied the motion and found that the officer’s failure to follow the

guidelines did not invalidate the police stop.

153

According to the court,

the NYPD guidelines are merely suggestions for ideal practices and they

do not represent the law. The officer reasonably relied on the license plate

reader’s hotlist and the database was not “stale,” as the defendant

suggested. Rather, it had been updated only 36 hours before the stop and

accurately reflected the status of the owner’s car.

154

Whether scanned license plate data is discoverable was at issue in

American Civil Liberties Union Foundation of Southern California v. The

Superior Court of Los Angeles County.

155

The American Civil Liberties

Union (“ACLU”) filed suit to obtain the ALPR data collected by the Los

Angeles Police Department for one week to ascertain if it showed whether

the police were using the information to target specific people,

neighborhoods, or organizations as well as to determine the degree to

which the technology was threatening individual policy interests.

156

The

City objected to the request, claiming that the law allowed it to withhold

records that are part of an investigation as well as when the public’s

interest in disclosure is outweighed by the need to keep the information

private.

157

The Supreme Court of California agreed with the City’s

position and prohibited the discovery of the data. The court noted that the

police department recorded between 1.7 and 1.8 million license plates a

week and kept that data for two years.

158

Disclosing such material would

threaten the privacy of everyone affiliated with the scanned plates and the

sheer volume of material would make that threat significant.

159

That data

would show the daily activities of its citizens, such as where they were at

a certain time, their employment location, home address, and places that

they visited.

160

Therefore, the court ruled that the request was a situation

in which the “public interest in preventing such a disclosure, clearly

outweighs the public interest served by disclosure of these records.”

161

Carpenter v. United States warrants watching in the future because of

the potential impact of the decision involving surveillance conducted in

public areas.

162

This case dealt with whether the “government conducts

a search under the Fourth Amendment when it accesses historical cell

phone records that provide a comprehensive chronicle of the user's past

153

. Id. at 791.

154

. Id.

155

. Am. Civil Liberties Union Found. v. Super. Crt., 3 Cal. 5th 1032 (Cal. 2017).

156

. Id. at 1043-44.

157

. Id. at 1044.

158

. Id. at 1037.

159

. Id. at 1044.

160

. Id.

161

. Id.

162

. Carpenter v. United States, 138 S. Ct. 2206 (2018).

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46 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

movements.”

163

In every instance when a phone connects to a cell site, it

creates a time-stamped record dubbed “cell-site location information

(CSLI).”

164

Wireless carriers retain CSLI for the start and end of

incoming calls and gather site information from the transmission of text

messages and regular data connections.

165

Carpenter dealt with an incident in 2011 where four individuals were

apprehended as suspects in the robbery of several Radio Shack and T–

Mobile stores. Based upon a confession, the FBI reviewed the phone

records of one of the suspects, and this data and site sector information

placed him near the scene of several crimes.

166

He was arrested and

moved to suppress the cell-site data provided by the wireless carriers,

alleging that the Government's seizure of the records violated the Fourth

Amendment because the information had been acquired without a warrant

based upon probable cause.

167

In applying the Fourth Amendment to innovations in surveillance tools,

the Court noted that it has sought to “assure preservation of that degree of

privacy against the government that existed when the Fourth Amendment

was adopted.”

168

Because of the huge storage capacity of cell phones, the

police must usually acquire a warrant before examining the contents of a

phone.

169

The instant fact pattern dealt with the Government's

procurement of a wireless carrier’s cell-site records revealing the location

of the defendant’s cell phone whenever he placed or received calls.

170

This personal location information kept by a third party did not fit

precisely under any existing precedent so the Court was left to its own

devices.

171

The Court held the use of CSLI constituted a Fourth Amendment

violation, noting that “an individual maintains a legitimate expectation of

privacy in the record of his physical movements as captured through

CSLI. The location information obtained from [the defendant’s] wireless

carriers was the product of a search.”

172

A person does not give up all

Fourth Amendment protections merely by entering a public space.

Instead, “what [one] seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected.”

173

Allowing

163

. Id. at 2211.

164

. Id.

165

. Id. at 2212.

166

. Id.

167

. Id.

168

. Id. at 2214.

169

. Id.

170

. Id.

171

. Id.

172

. Id. at 2217.

173

. Id.

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the government to obtain cell-site records violates that expectation.

174

Likewise, mapping a cell phone's position over many days affords an all-

encompassing log of the person's whereabouts. This information offers a

detailed glimpse into the individual’s life, showing his “familial, political,

professional, religious, and sexual associations.”

175

Since obtaining CSLI

constitutes a search, “the Government must generally obtain a warrant

supported by probable cause before acquiring such records.”

176

The

impact of this decision remains to be seen but it does offer safeguards

with certain data that is obtained from a public area.

III. POLICE USE OF DRONES

To some, perhaps the ultimate intrusion into one’s privacy would occur

if the police could take to the air to secretly conduct surveillance of their

citizens. That day has arrived with the use of unmanned aerial vehicles

(“UAV”) or drones. This aerial technology has become commonplace,

with 1.1 million UAVs being employed in the United States. It is

predicted that this number will triple to almost 3.5 million devices by

2021.

177

The Center for the Study of the Drone at Bard College

determined that, as of 2018, as many as 910 state and local public safety

agencies have purchased UAVs with more than half of this number

belonging to law enforcement agencies.

178

Police use of drone technology will only increase because of the low

cost of the equipment. A good drone costs about $3,000 and it can be

equipped with a very powerful zoom-enabled camera for another $3,000.

A police helicopter, on the other hand, costs anywhere from one-half

million to several million dollars.

179

The cost to fly a helicopter is about

$200 to $400 an hour, not counting maintenance expenses.

180

Comparing

the costs of these two types of aerial technology, law enforcement could

buy a fleet of 500 drones instead of one helicopter. This would allow them

to blanket a large area with UAVs that can follow people unnoticed from

thousands of feet away and employ software that can identify individuals

in an automated fashion.

181

174

. Id.

175

. Id.

176

. Id. at 2221.

177

. Curt Fleming, Remote Drone Dispatch: Law Enforcement’s Future?, POLICE CHIEF MAG.,

https://www.policechiefmagazine.org/remote-drone-dispatch/ (last visited Dec. 9, 2019).

178

. Jake Laperruque & David Janovsky, These Police Drones Are Watching You, POGO (Sep. 25,

2018), https://www.pogo.org/analysis/2018/09/these-police-drones-are-watching-you/.

179

. Id. at 3.

180

. Id. at 3-4.

181

. Id. at 4.

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48 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

A. UAV and Drone Equipment

Most advances in the development of drones occurred during periods

of war.

182

These unmanned flying machines gained much recognition

during their use in military incursions in the Middle East following the

September 11th attacks. The government employed these devices to

perform surveillance in Iraq, Afghanistan, and Iran, in addition to

dropping targeted weapons.

183

Because drones fly hundreds of feet above

the ground, they are usually undetectable by those being watched.

184

These flying machines gained a domestic application in 2005 when

Customs and Border Patrol started using them to monitor the Canadian

and Mexican borders, detecting large quantities of marijuana and

cocaine.

185

Surveillance UAVs have very sophisticated imaging technology that

offers the capability to acquire detailed images of individuals, terrain,

houses and even small objects.

186

The drone cameras are usually high

definition and can provide live-feed video streams at a rate of 10 frames

a second. Some systems even allow the operator to follow more than 50

varied targets across a distance of 65 square miles.

187

Because the units

can be equipped with thermal infrared video cameras, heat sensors, and

radar, drones can allow sophisticated and continuous surveillance 24

hours a day.

188

They can also be coupled with cell-phone interception

devices, specialized software (such as license plate readers), facial

recognition software and GPS trackers.

189

UAVs come in varying sizes from small quadrotors to large fixed

aircraft. They differ from manned aircraft due to their much smaller size,

reduced costs, ability to fly at low altitudes and easy deployment.

190

Drones can be manually operated through hand-held devices with video

cameras so that the operator can view the area in which the device is being

employed. They can fly autonomously without the need for a person to

manually control the drone.

191

182

. Domestic Unmanned Aerial Vehicles (UAVs) and Drones, EPIC.ORG,

https://epic.org/privacy/drones/ (last visited Dec. 8, 2019).

183

. Id.

184

. Id.

185

. Jessica Dwyer-Moss, The Sky Police: Drones and the Fourth Amendment, 81 ALB. L. REV.

1047, 1048 (2018).

186

. Domestic Unmanned Aerial Vehicles (UAVs) and Drones, supra note 182, at 2.

187

. Id.

188

. Drones/Unmanned Aerial Vehicles, ELECTRONIC FRONTIER FOUND.,

https://www.eff.org/pages/dronesunmanned-aerial-vehicles (last visited Dec. 9, 2019).

189

. Id. at 1.

190

. Id.

191

. Id.

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B. UAV Use by Law Enforcement

Police departments routinely use UAV and drone technology as part of

their law enforcement arsenal.

192

This application has moved past the

experimental phase and drones are being employed by law enforcement

in their day to day operations at a rapidly increasing pace. This usage has

increased by a staggering 518% just during the past two years.

193

A variety of police drone applications exist, ranging from search and

rescue operations to crime scene analysis.

194

For example, UAVs permit

the police to scour a location where suspects might be hiding while

keeping the surveillance as discreet as possible. Where police vehicles

can be easily spotted, a drone permits discreet observations while

safeguarding officers from danger.

195

UAVs are very useful in search and

rescue missions because they can cover vast territories more quickly and

efficiently than officers on foot. They can also fly under trees, over water,

and between buildings—providing access that is not possible by a

chopper.

196

Drones are even employed to help the police follow a suspect.

For instance, it is difficult for ground forces to keep track of a suspect

who has fled to a rooftop area. A UAV provides an eye in the sky that

relays key information about a suspect’s movements and directs the police

to optimal positions.

197

Aerial devices can also help identify suspects,

ascertain what weapons they might be carrying, and assist in collecting

evidence that may be impossible to retrieve from the ground.

198

Other applications include using a drone to obtain a three-dimensional

reconstruction of an accident scene, since the aircraft can obtain evidence

from angles that would normally be impossible to film without a

helicopter.

199

UAVs are used to manage and observe traffic and to

determine why it is backed-up. This information can then be used to

detour traffic, change the rate of red and green lights to better manage the

flow of traffic, and detect speeding vehicles.

200

Drones also have

applications following a natural disaster where it may be impossible for

vehicles to access the area and identify people in need of help. They have

192

. 5 Ways Drones Benefit Police, DRONE USA (Nov. 16, 2018),

https://www.droneusainc.com/articles/5-ways-drones-benefit-police.

193

. Id. at 2.

194

. Id.

195

. Id. at 3.

196

. Derek Wheeler, Police Drones (UAVs), DSLR PROS, https://www.dslrpros.com/police-

drones.html (last visited Dec. 8, 2019).

197

. Stephen Rice, 10 Ways That Police Use Drones to Protect and Serve, FORBES (Oct. 7, 2019),

https://www.forbes.com/sites/stephenrice1/2019/10/07/10-ways-that-police-use-drones-to-protect-

and-serve/#e69d6f165806.

198

. Id. at 2.

199

. Id.

200

. Id. at 4.

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50 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

even been deployed to manage large events such as the Super Bowl,

Spring Break parties, and the Daytona 500. This surveillance allows the

police to detect trouble before it becomes unmanageable and to redirect

their personnel to troubled areas.

201

A recent trend in drone use arises in a business context. A growing

number of employers are utilizing UAVs to oversee their property and

workers on a customary basis.

202

These applications include watching

workers believed to be engaged in the theft or misappropriation of

confidential information, viewing the performance and efficiency of

workers, and halting unsanctioned use of, or damage to, business

assets.

203

C. Autonomous UAVs

There has been much publicity about industries, such as Amazon,

attempting to expand the commercial application of autonomous drones

by delivering their products. There are three major roadblocks to this

adoption in the United States: Federal Aviation Administration (“FAA”)

rules, limited flight time, and privacy concerns.

204

The FAA has two

regulations that are obstacles to the full implementation of autonomous

drone operation: Beyond Visual Line of Sight (“BVLOS”) flight, and

Detect and Avoidance (“DAA”).

205

BVLOS rules provide that an operator

must be able to visualize the drone at all times while in flight. This

directive would prevent autonomous or remotely directed flights. The

pilot provides a manned aircraft with a built-in system to detect other

planes in the area and to take avoidance measures when necessary. This

is difficult with a drone because the operator is on the ground, or, in the

case of an autonomous UAV, no pilot exits to “see and avoid” other

aircraft by taking evasive action.

206

The second obstacle is that current

battery limitations provide drones with an average flight life of about 30

minutes.

207

The last hurdle is one of privacy and the drone’s ability to

visualize areas that are normally not accessible to public view.

208

201

. Id. at 6.

202

. Charlie Plumb, Drones in the Workplace: Tips for Handling New Technology, 24 No. 1 Okla.

Emp. L. Letter 3, January 2016.

203

. Id. at 1.

204

. Fleming, supra note 177, at 2.

205

. Id.

206

. Id.

207

. Id.

208

. Id.

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D. Criticisms of UAV and Drone Technology

Critics maintain that aerial surveillance undercuts the safeguards

imposed to prevent unreasonable location tracking and the government’s

accumulation of personal information.

209

Drones present a unique

challenge for privacy rights.

210

They provide the government with the

opportunity to track the movements of individuals and index participation

in constitutionally protected activities such as protests, political rallies,

and religious ceremonies.

211

After all, inconspicuous drones permit the

police to spy on people from thousands of feet away with a high degree

of precision.

212

Coupled with other automated identifying technologies,

such as license plate readers and facial recognition software, Big Brother

will be able to surveil people unnoticed, monitor their movements over

time, and identify them through a single image.

213

These concerns are real, as demonstrated by research conducted by the

ACLU. The ACLU discovered that the FBI was using aerial surveillance

to record protestors, and sellers of the equipment were marketing drones

to law enforcement agencies by highlighting the drone’s capacity to

identify people at public gatherings.

214

Drone cameras can even be paired

with facial recognition software contained in the FBI’s Next Generation

identification database or DHS’ IDENT, two of the biggest compendia of

biometric data in the world, thereby creating First Amendments perils for

political protestors.

215

E. Judicial and Legislative Responses to UAV and Drone Technology

UAVs usually operate in an area below the navigable airspace

regulated by the FAA, “in the vertical curtilage that is viewed as

belonging to a property owner.”

216

This airspace was unregulated until

recently. Now, these unmanned aircraft trigger FAA law requirements, as

well as the property rights of landowners.

217

In this regard, the

government, in June 2016, issued its first operational rules for customary

use of small, unmanned aircraft systems. The regulations provide safety

rules for drones that weigh less than fifty-five pounds and conduct non-

209

. Laperruque, supra note 178, at 2.

210

. Domestic Unmanned Aerial Vehicles (UAVs) and Drones, supra note 182.

211

. Laperruque, supra note 178, at 2.

212

. Id. at 3.

213

. Id.

214

. Id.

215

. Domestic Unmanned Aerial Vehicles (UAVs) and Drones, supra note 182.

216

. Elizabeth Austermuehle, Drones and Private Property Rights, 34 No. 26 WESTLAW J.

AVIATION, 1 (2017).

217

. Domestic Unmanned Aerial Vehicles (UAVs) and Drones, supra note 182.

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52 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

hobbyist operations.

218

Generally, UAV operators are required to fly their devices within their

visual sightline and regulations bar them from flying over individuals on

land who are not participating in the drone’s operation.

219

This

dramatically restricts drone use over land that does not belong to the

UAV’s operator, but regulations do not expressly address the rights of

adjacent landowners who desire to limit drones from flying over their

property.

220

In the absence of federal or state laws permitting these

unmanned aircraft to operate above private property without the owner's

consent, drones are not authorized to fly over these areas.

221

Violators are

subject to suit by landowners who may enforce their rights through a tort

action, including trespass and invasion-of-privacy claims.

222

In a criminal context, the Supreme Court of the United States has found

that citizens generally do not enjoy Fourth Amendment protections

against drone use because anyone might see what can be visualized from

the air.

223

The weakness in this position is that the average person does

not use drones with the sophistication of those employed by the

government.

224

State courts have also issued varying opinions on whether

UAVs violate a person’s privacy rights.

225

Most jurisdictions do not require the police to obtain a search warrant

before engaging in drone surveillance. However, at least eighteen states

now require law enforcement in certain situations to obtain a warrant

before using a drone for surveillance purposes, while others have issued

civil penalties if drones take video or sound recordings of another without

obtaining that person’s consent.

226

These jurisdictions include Alaska,

Florida,

227

Idaho, Illinois,

228

Indiana, Iowa, Maine,

229

Montana, North

Carolina,

230

North Dakota,

231

Oregon, Tennessee,

232

Texas,

233

Utah,

234

218

. Id.

219

. Id.

220

. Id.

221

. Id.

222

. Id.

223

. Austermuehle, supra note 216, at 4.

224

. Id.

225

. Id.

226

. Laperruque, supra note 178 ; CAL. CIV. CODE § 1708.8 (West 2016).

227

. FLA. STAT. ANN. § 934.50 (West 2017).

228

. 20 ILL. COMP. STAT. 5065/1-99 (West 2017) (repealed 2017).

229

. ME. REV. STAT. ANN. tit. 25, § 4501 (2015).

230

. 2013 N.C. Sess. Laws 41.

231

. N.D. CENT. CODE ANN. § 29-29.4-02 (West 2015).

232

. TENN. CODE ANN. § 39-13-903 (West 2019).

233

. TEX. GOV’T. CODE ANN. §§ 411.062, §423.002(a), §423.0045 (West 2019).

234

. UTAH CODE ANN. § 72-14-101 (West 2017) (original version at § 63g-18-101).

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Vermont, Virginia

235

and Wisconsin.

236

The first judicial pronouncements involving aerial surveillance arose

with searches conducted by traditional aircraft. In 1986 in California v.

Ciraolo, the Supreme Court determined that a search of a fenced-in

backyard conducted by air and without a warrant was allowed under the

Fourth Amendment.

237

The facts reveal that based upon a tip that

marijuana was being grown in the defendant’s secured backyard, a private

airplane was flown over the premises and an officer spotted the illegal

plants growing in the backyard.

238

The police obtained a search warrant

and seized the plants. The defendant filed a motion to suppress evidence

of the seizure, claiming that aerial surveillance was a violation of his

Fourth Amendment rights.

239

The Court noted that the defendant had the

subjective intent to maintain his privacy since a ten-foot-high fence had

been built around the backyard to conceal the marijuana crop.

240

However, such a fence does not hide these illegal plants from police

observation by an officer standing on top of a truck or bus.

241

After all,

the Fourth Amendment does not protect a person’s expectation of privacy

if the officer’s observations can be made from a public viewing point.

242

In this case, the observations of the marijuana occurred within public

airspace. Society is operating in an era where aircrafts routinely fly over

property, so it is not reasonable to conclude that marijuana plants in

someone’s backyard are constitutionally protected.

243

The police are not

mandated to obtain a warrant when they use public airways at an altitude

of 1,000 feet to see what is visible to the naked eye.

244

The Supreme Court decided a second case during the same year in Dow

Chemical Company v. United States.

245

Dow Chemical employed

elaborate measures to safeguard its property from the prying eyes of those

on the ground.

246

Under a plant inspection, the Environmental Protection

Agency (“EPA”) hired a commercial aerial photographer to shoot a

picture of the plant from various altitudes.

247

Dow maintained that these

235

. VA. CODE ANN. § 19.2-60.1 (West 2019).

236

. See Drone Laws By State, CONSUMER.FINDLAW.COM (Mar. 28, 2019),

https://consumer.findlaw.com/consumer-transactions/drone-laws-by-state.html; Laperruque, supra

note 178.

237

. California v. Ciraolo, 476 U.S. 207 (1986).

238

. Id. at 207.

239

. Id.

240

. Id. at 211.

241

. Id.

242

. Id. at 213.

243

. Id.

244

. Id. at 215.

245

. Dow Chem. Co. v. United States, 476 U.S. 227 (1986).

246

. Id. at 227.

247

. Id.

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54 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

pictures violated its Fourth Amendment rights by exposing trade

secrets.

248

The Court started its decision by noting that Dow admitted that an

aerial observation with the naked eye, or the snapping of a picture from a

surrounding hill overlooking the facility, would not be constitutionally

protected.

249

The issue was whether an aerial mapping camera of a large

industrial plant was permissible under the Fourth Amendment.

250

In this

regard, the Court has noted that “the public and police lawfully may

survey lands from the air.”

251

The pictures, in this case, were not so

detailed as to raise Fourth Amendment concerns. Although the images

indeed provided the EPA with “more detailed information than naked-eye

views, they remain limited to an outline of the facility's buildings and

equipment. The mere fact that human vision is enhanced somewhat, at

least to the degree here, does not give rise to constitutional problems.”

252

A third case reached the Supreme Court a few years later in Florida v.

Riley.

253

The issue before the Court was “[w]hether surveillance of the

interior of a partially covered greenhouse in a residential backyard from

the vantage point of a helicopter located 400 feet above the greenhouse

constitutes a ‘search’ for which a warrant is required under the Fourth

Amendment.”

254

The Court found that this search did not violate the

Constitution based upon its prior holdings. The judges were not impressed

by the low altitude at which the helicopter flew while making the

observations, since any member of the public flying in an aircraft could

have made the same observations.

255

While these cases do not specifically

address the framework of surveillance conducted by a drone, they set the

foundation for the subsequent law in this area.

Westlaw searches involving drones and the Fourth Amendment or

drone surveillance by the police reveal only a handful of cases on the

topic. Several of the decisions involve pro-se plaintiffs.

256

Byers v. State

of Indiana is a recent decision involving a woman who was mowing her

lawn when she discovered a drone in her backyard.

257

She noticed a flash

drive attached to the unmanned aircraft, so she pugged it into her home

248

. Id. at 232.

249

. Id. at 234.

250

. Id.

251

. Id. at 238 (citing Oliver v. United States, 466 U.S. 170, 179 (1984)).

252

. Id.

253

. Florida v. Riley, 488 U.S. 445 (1989), reh’g denied, 490 U.S. 1014 (1989).

254

. Id. at 447-48 (citing Riley v. State, 511 So. 2d 282 (Fla. 1987), cert. granted, rev’d, 488 U.S.

445 (1989)).

255

. Id. at 450-51.

256

. This statement is based upon a Westlaw search conducted by the author on December 19, 2019.

257

. Byers v. State, 134 N.E.3d 1051 (Ind. Ct. App. 2019), transfer denied, 141 N.E.3d 807 (Ind.

2020).

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2020] BIG BROTHER IS WATCHING 55

computer and found footage of a woman, who she recognized as her

neighbor, handling a bag filled with white powder.

258

The homeowner contacted the police and turned over the flash drive,

and the police then obtained a search warrant. A subsequent search of the

defendant’s home uncovered methamphetamine and a handgun.

259

The

defendant was arrested and she moved to suppress the evidence obtained

as the result of the drone search under the Fourth Amendment.

260

The

Court found the evidence was admissible since only four days had elapsed

from when the video was shot and the issuance of the warrant.

261

At no

time did the defendant directly challenge the video obtained by the drone.

People have also been arrested for using drones to take unauthorized

images. For example, one of the first prosecutions for conducting

unauthorized surveillance through the use of a drone occurred in New

York when the defendant was arrested after taking images of a medical

building using his unmanned device.

262

At trial, the defendant claimed

that he was using his device to take “videos and photos of the facade of

the structure” while waiting for his mother's doctor’s appointment to

finish.

263

The defendant asserted that the drone's camera did not have a

zoom lens, the building's windows were tinted, and the video did not

reveal the inside of the premises.

264

Both the government and workers

inside of the office raised concerns about patient privacy, but the

defendant was found not guilty of the charges.

265

The opposite result was rendered in Wisconsin in 2015.

266

In this case,

a drone operator was found guilty of five counts for the employment of

his unmanned aircraft “to harass residents in a…neighborhood.”

267

The

facts show that the charges were filed in response to complaints by

neighbors that a drone was “flying near their windows and observing

them on their private property.”

268

The defendant was convicted of

violating a law that made it illegal for an “individual to use a drone to

observe a person in a place where that person should have a reasonable

expectation of privacy.”

269

258

. Id. at 1053.

259

. Id.

260

. Id. at 1054.

261

. Id. at 1056.

262

. Rebecca L. Scharf, Drone Invasion: Unmanned Aerial Vehicles and the Right to Privacy, 94

IND. L.J. 1065, Summer 2019, at 1067.

263

. Id.

264

. Id.

265

. Id.

266

. Id.

267

. Id.

268

. Id. at 1067-68.

269

. Id. at 1068.

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56 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

Issues involving drone use have arisen in a civil context. F.W.T. v. F/T.

provides an example.

270

This case entails a dispute between a father and

son concerning a long-standing quarrel between them.

271

The purpose of

the lawsuit was an action by the son to obtain an order against harassment

because his father allegedly had someone fly a drone over his property

three times to hinder the son’s development of the land.

272

According to

the law, such an action requires a showing that the conduct “caused fear,

intimidation, abuse or damage.”

273

The court refused to grant the protective order and noted that there

was no evidence to show that the elements of the statute had been

satisfied.

274

Merely flying a drone over, or trespassing upon, the land to

film a worksite does not rise to the level of harassment within the meaning

of the law.

275

In no way did the court approve of the conduct of the father,

but it noted that the proper cause of action would have been a claim for

“nuisance, trespass or other cause of action, enforceable through”

equitable relief.

276

Flores v. State of Texas presented a constitutional challenge to a

recently passed law regulating the utilization of drones.

277

The evidence

demonstrated that drones have become increasingly popular by law

enforcement agencies for policing and surveillance activities.

278

This use

has also expanded into the public sector for commercial, scientific and

recreational purposes. This has raised questions about privacy rights and

the legal use of drone-captured pictures.

279

In this regard, Texas passed a

law making it criminal to use a drone to take images of other individuals

on their land. It further allowed the property owner to obtain injunctive

relief or monetary damages in case of a violation.

280

The police, however,

enjoy an exception when they use drones for official activities, such as

the pursuit of a suspect, documenting a crime scene or taking pictures for

immigration purposes within twenty-five miles of the border.

281

The plaintiff, in this case, was a resident of Laredo, Texas and his

property was within the twenty-five-mile zone. He filed suit to obtain

injunctive relief declaring that the border exception violated his rights

270

. F.W.T. v. F.T., 101 N.E.3d 336 (Mass. App. Ct. 2018).

271

. Id. at 338-39.

272

. Id.

273

. Id. at 339 (citing Seney v. Morhy, 3 N.E.3d 577, 582 (Mass. 2014)).

274

. Id. at 339.

275

. Id. at 340.

276

. Id. at 340, n.8.

277

. Flores v. State of Texas, No. 5:16-CV-130, 2017 WL 1397126 (S.D. Tex. Mar. 31, 2017).

278

. Id. at *1.

279

. Id.

280

. Id.

281

. Id.

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2020] BIG BROTHER IS WATCHING 57

under the Equal Protection Clause and the right to privacy afforded by the

Constitution.

282

As the plaintiff noted, this exception provides a

“playground for drone enthusiasts who would otherwise be precluded

from filming people in their homes, washing their cars, gardening in their

yard, or simply walking on their private property” to be observed without

any type of protection as long as they are within twenty-five miles of the

border, while everyone else in the state is protected.

283

The court denied

the request on the basis that the plaintiff lacked standing to challenge the

law. It noted that standing requires more than an allegation of residency

within the zone.

284

The plaintiff must show that an identifiable drone was

used to take images of him on his land. Mere generalizations and a

hypothetical injury are not enough

285

and living within the twenty-five

miles zone was insufficient to establish an actual injury.

286

In Allums v. Department of Homeland Security, a pro se plaintiff

claimed that the government was harassing him through a variety of

activities, such as showing up at his house to eat ice cream and stare at

him, as well as committing copyright violations of his work.

287

In his fifth

count, Allums asserted that he had been the subject of drone surveillance

and attacks by the government, as well as agents telling him that he would

soon be “killing Americans with Drone Airplanes.”

288

The plaintiff

maintained that these activities were carried out by agents who ordered

his execution by airborne devices that flew close to his head, causing him

to duck and fall to the ground.

289

Not surprisingly, the court dismissed the

lawsuit for the failure to state a claim. The court considered the plaintiff’s

allegations fanciful and frivolous. There were simply no facts to support

his conclusory allegations that the government was surveilling him.

290

IV. FACIAL RECOGNITION SOFTWARE

Anonymity in the 21

Century is no longer an option since most people

now have some form of photo identification and surveillance technology

is constantly expanding. These developments have caused most members

of society to have had an encounter with facial recognition software

282

. Id.

283

. Id.

284

. Id. at *4.

285

. Id. at *3.

286

. Id.

287

. Allums v. Dep’t of Homeland Sec., No. 13-cv-00807 JSC, 2013 WL 4426258, at *1-2 (N.D.

Cal. Aug. 14, 2013).

288

. Id. at*3.

289

. Id.

290

. Id. at *6; see also Strong v. United States, No. 11CV2957 JLS (WVG), 2012 WL 202780 (S.D.

Cal. Jan. 23, 2012).

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58 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

without their knowledge or consent. Facial recognition software refers to

equipment that has the dual role of “connecting faces to identities” and

enabling the “distribution of those identities across computer

networks.”

291

Facial recognition technology (“FRT”) can be traced back to the mid-

1960s, when researchers first started working with computers to

recognize human faces.

292

By the 1990s, automated facial recognition

algorithms were developed, and after the September 11th attacks, FRT

became part of the public discourse.

293

The federal government invested

heavily in FRT, and millions of dollars in grants were awarded to state

and local governments to establish databases. What started as

government-funded research in computer sciences eventually made its

way into the private sector.

294

FRT software is now employed by stores

to scan the faces of customers and pre-identify shoplifters and people

known to file lawsuits.

295

Some airlines use FRT to speed up the boarding

process.

296

Microsoft has even created a billboard that recognizes people

as they walk by and then deploys personalized ads associated with the

individual’s buying history.

297

FRT is linked to a database of images, such as mugshots, government

issued identification photos (such as drivers licenses and passports), and

social media accounts to rapidly identify people through biometrics to

match key facial features, such as the distance between the eyes and the

gap between the forehead and chin.

298

These measurements then create a

“facial signature” that is linked to a mathematical formula and compared

to a database of stored images.

299

As one might imagine, FRT is a much

in-demand law enforcement tool for solving crimes by ascertaining the

identity of the offenders who are imaged on surveillance footage, locating

291

. Kelly A. Gates, Our Biometric Future: Facial Recognition Technology and the Culture of

Surveillance 15 (N.Y. Univ. Press, 2011).

292

. Kevin Bonsor & Ryan Johnson, How Facial Recognition Systems Work, HOW STUFF WORKS

1, https://electronics.howstuffworks.com/gadgets/high-tech-gadgets/facial-recognition.htm (last

visited Feb. 7, 2020).

293

. Gates, supra note 292, at 27 (noting that proponents of FRT suggested that this technology

could have prevented the hijackings).

294

. Id.

295

. Ben Sobel, Facial Recognition Technology is Everywhere. It May Not be Legal, WASH. POST

(June 11, 2015), https://www.washingtonpost.com/news/the-switch/wp/2015/06/11/facial-

recognition-technology-is-everywhere-it-may-not-be-legal/?arc404=true.

296

. Francesca Street, How Facial Recognition is Taking Over Airports, CNN (Oct. 8, 2019),

https://www.cnn.com/travel/article/airports-facial-recognition/index.html.

297

. Id.

298

. Nicole Martin, The Major Concerns around Facial Recognition Technology, FORBES (Sept.

25, 2019), https://www.forbes.com/sites/nicolemartin1/2019/09/25/the-major-concerns-around-

facial-recognition-technology/#235792e84fe3.

299

. Id.

Hodge: Big Brother is Watching

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2020] BIG BROTHER IS WATCHING 59

fugitives in a crowd, or locating terrorists as they enter the country.

300

Other suggested applications include spotting problem gamblers in

casinos, greeting guests at hotels or on ships, linking people on dating

websites, identifying underage drinkers, and helping take attendance at

schools.

301

A. How Does FRT Work?

Some people have the innate ability to remember a face. This

recognition occurs because the individual can retain identifying

information about the facial features such as the eyes, nose, mouth, and

how those features come together to form a familiar pattern.

302

Facial

recognition systems work similarly, albeit on an algorithmic scale. Where

a person visualizes a face, FRT recognizes data that is stored and can be

easily accessed. In this regard, 50% of adults in the United States have

their pictures warehoused in one or more facial-recognition databases that

law enforcement agencies can search.

303

Matching a picture to a person

generally works in the following way:

• The first step requires that a person’s face be captured.

304

Traditionally, this mandates the captured picture to be of a face

looking directly at the camera, with only a slight change in light

or facial expression from the database image.

305

• A template for FRT is then made, which consists of measurements

of facial characteristics, such as the distance between the eyes, the

width of the mouth or depth of the eye sockets. These landmarks

are dubbed nodal points, and the measurements are inputted into

a template with a distinctive code.

306

Every face has about 80

nodal points.

307

• These nodal points are then analyzed, and the software will

compare the template of the person’s face to those stored in a

database to search for a potential match.

308

300

. Kristine Hamann & Rachel Smith, Facial Recognition Technology: Where Will it Take Us?,

A.B.A., https://www.americanbar.org/groups/criminal_justice/publications/criminal-justice-

magazine/2019/spring/facial-recognition-technology/ (last visited Feb. 6, 2020).

301

. Id.

302

. Steve Symanovich, How Does Facial Recognition Work?, U.S.NORTON.COM,

https://us.norton.com/internetsecurity-iot-how-facial-recognition-software-works.html (last visited

Feb. 7, 2020).

303

. Id.

304

. Id.

305

. Bonsor, supra note 293, at 2.

306

. Symanovich, supra note 303.

307

. Bonsor, supra note 293, at 2.

308

. Hamann, supra note 301.

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60 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

The chances of law enforcement officials finding a match are high

since more 117 million Americans have facial pictures stored in one or

more government databases and the FBI has access to 412 million

images.

309

In fact, FBI facial recognition searches now outnumber court-

ordered wiretaps.

310

B. Advantages of FRT

FRT has multiple applications and offers a variety of benefits that vary

depending upon the user. For instance, governments internationally use

FRT in police, military, and intelligence operations, and businesses use

FRT in security, advertising, banking, sales, and health care.

311

One of

FRT’s most important benefits, however, is that it can make law

enforcement operations much more efficient.

Officials can submit a photograph of a recently apprehended individual

through its system to identify the person and ascertain if there are

outstanding warrants for other offenses.

312

It can help officers in the field

observing a large gathering, like a sporting event or political rally, identify

people of interest, known terrorists, and wanted criminals.

313

It is also

being used to ensure efficient regulation. The New York Department of

Motor Vehicles, for instance, has used FRT to detect fraudulent

licenses

314

and the Pinellas County Sheriff’s Office in Florida uses it to

identify inmates at the time of booking and release.

315

FRT offers a faster way to process individuals without stopping each

person to ask for identification. The system can even be used as an

alternative for a password to access computers

316

or to gain entry into a

building or secured location. Since no passwords are needed with facial

recognition, there is nothing that a hacker or thief could compromise. This

would prevent someone from using a stolen identification for

309

. Symanovich, supra note 303.

310

. Clare Garvie et al., The Perpetual Line-Up: Unregulated Police Face Recognition in America,

PERPETUALLINEUP.ORG 2 (Oct. 18, 2016), https://www.perpetuallineup.org/background.

311

. Ashley Deeks & Shannon Togawa Mercer, Facial Recognition Software: Costs and Benefits,

LAWFARE (Mar. 27, 2018), https://www.lawfareblog.com/facial-recognition-software-costs-and-

benefits.

312

. Id.

313

. Id. at 1-2.

314

. Anthony M. Carter, Facing Reality: The Benefits and Challenges of Facial Recognition for the

NYPD 58 (Sept. 2018) (unpublished M.A. thesis, Naval Postgraduate School) (available online),

https://www.hsdl.org/?view&did=818128.

315

. Id.

316

. 6 Benefits of Facial Recognition Everyone Should Know, Tech. BUS. GUIDE,

https://techbusinessguide.com/benefits-facial-recognition-everyone-should-know/ (last visited Feb.

10, 2020).

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2020] BIG BROTHER IS WATCHING 61

impersonation purposes.

317

It is also favored over fingerprint scanning

due to its non-contact process. The possible disadvantages of dealing with

fingerprint identification methods, such as germs or smudges, will be

eliminated.

318

It can even eliminate time fraud by employees. Facial

recognition will prevent a co-worker from time-stamping someone else’s

attendance or timesheets since each person must pass a face-scanning

device to check in and out of work.

319

A lesser-known advantage of FRT is its ability to find missing persons.

For instance, police in China were able to find a missing six-year-old by

using a picture that had been taken days earlier with cameras linked to

FRT.

320

New Delhi authorities reported finding nearly 3,000 missing

children within days of launching a facial recognition program.

321

Aside

from leading to breakthroughs in missing children cases, FRT has also led

to breakthroughs in cases involving the mentally ill. For instance, a

mentally ill man who had been in a Chinese hospital for over a year was

reunited with his family. The hospital had been unable to identify him,

but a facial recognition firm was able to do so by linking a picture of his

face with public records.

322

These success stories suggest that FRT could

be an essential tool in helping vulnerable populations.

C. Technological Limitations of FRT

FRT has certain limitations. This was revealed following the Boston

Marathon bombings, which showed that the FBI lacked the appropriate

software and databases to immediately identify the suspects.

323

While

government databases contained the pictures of both Boston Marathon

bombings suspects, the software could not match the surveillance footage

to these database images.

324

Although FRT has become increasingly

accurate, certain factors will still yield false positives, false negatives, or,

as in this case, undetected faces.

325

These influences include the

sophistication of the camera, distance, database size, algorithm, and

317

. Id.

318

. PROS AND CONS OF FACIAL RECOGNITION TECHNOLOGY, RTI, HTTPS://WWW.1RTI.COM/PROS-

CONS-OF-FACIAL-RECOGNITION-TECHNOLOGY/ (LAST VISITED FEB. 10, 2020).

319

. Pros and Cons of Facial Recognition Technology for Your Business, UPWORK (Dec. 27, 2017),

https://www.upwork.com/hiring/for-clients/pros-cons-facial-recognition-technology-business/.

320

. Carter, supra note 315.

321

. Rob Watts, Facial Recognition as a Force of Good, BIOMETRIC TECH. TODAY, March 2019.

322

. Anthony Cuthbertson, Facial Recognition Technology Reunites Lost Man with His Family,

INDEP. (Apr. 19, 2018), https://www.independent.co.uk/life-style/gadgets-and-tech/news/facial-

recognition-reunite-family-man-lost-china-tech-mental-health-a8312161.html.

323

. Jeffrey Edgell, Four Limitations of Facial Recognition Technology, FED TECH (Nov. 22,

2013), https://fedtechmagazine.com/article/2013/11/4-limitations-facial-recognition-technology.

324

. Id.

325

. Carter, supra note 315.

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the subject’s race and gender.

326

There are several limitations to FRT. Poor image quality will limit

the effectiveness of FRT since it affects the usefulness of facial-

recognition algorithms. This is an inherent problem because the quality

of a scanning video is much lower than that of a digital camera.

327

The

comparative dimensions of the face with the image size also influence

how well the face will be identified. Therefore, small image sizes cause

facial recognition difficulties.

328

The angle of the target’s face to the

camera is another factor that significantly impacts the recognition score.

The more direct the face is to the camera, the higher the resolution of the

image becomes, and a higher score is achieved for a resulting match.

Accuracy rates also drop as the number of pictures in a database increases.

This is because the database is likely to have images of people that look

very similar, leading the algorithm to pick the wrong person.

329

The accuracy of automated facial recognition algorithms also depends

upon the subject. The faces of individuals change over time, which can

throw off the algorithm in identifying a person from an earlier picture.

Additionally, changes that happen from one day to the next, such as

hairstyles and facial expressions, can lead to improper identification.

330

Finally, accuracy rates are lower in certain demographics. Facial

recognition algorithms have been less successful with minorities, women,

and young adults than Caucasians, men, and older adults.

331

This is

because facial-recognition algorithms were trained on databases that

mostly contained pictures of white males.

332

As a result, one study found

that there is an error rate of around 31% when identifying the gender of

women with dark skin.

333

Accuracy is important when a person’s civil and liberty interests are

involved, which is why FRT vendors advertise accuracy rates of over

95%.

334

However, this figure must be questioned when it is followed by

326

. Jake Laperruque, Unmasking the Realities of Facial Recognition, POGO (Dec. 5, 2018),

https://www.pogo.org/analysis/2018/12/unmasking-the-realities-of-facial-recognition/.

327

. Edgell, supra note 324.

328

. Id.

329

. See Garvie et al., supra note 311. (noting that sixteen states allow the FBI to access their

driver’s license and ID databases).

330

. Hamann & Smith, supra note 301.

331

. Garvie et al., supra note 311.

332

. See Jieshu Wang, What’s in Your Face? Discrimination in Facial Recognition Technology, 30

(Apr. 13, 2018) (unpublished M.A. thesis, Georgetown University) (available online),

https://repository.library.georgetown.edu/bitstream/handle/10822/1050752/Wang_georgetown_00

76M_14043.pdf?sequence=1&isAllowed=y (“It is estimated that in one widely used FRT training

dataset, 75% are male, and over 80% are white.”).

333

. The Limits of Facial Recognition Technology, NEW HUMANIST (Feb. 18, 2019),

https://newhumanist.org.uk/articles/5419/the-limits-of-facial-recognition-technology.

334

. Edgell, supra note 324.

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the disclaimer: “[This company] makes no representation or warranties as

to the accuracy and reliability of the product in the performance of its

facial recognition.”

335

Even less reassuring is the fact that law

enforcement is not required to perform independent testing to determine

the accuracy of the FRT it uses.

336

While the National Institute of

Standards and Technology (“NIST”) conducts voluntary tests of FRT

every four years, many law enforcement entities do not participate in

these audits.

337

Some law enforcement entities recognize that FRT is not

flawless, so they have a human verify the results.

338

However, this

additional step does not guarantee accuracy, since people tend to be good

at recognizing familiar faces but have difficulty recognizing unfamiliar

faces.

339

Inaccuracies are equally prevalent in the private sector.

D. Legislative Responses to FRT

Some legislatures have passed laws that limit the use of FRT and courts

have interpreted these laws to require warrants and other protections.

340

However, Congress has yet to enact federal legislation that directly

regulates FRT. This is a major concern among citizens because of

questions about the technology’s accuracy and whether there is built-in

bias and misinformation in these systems.

341

Nevertheless, FBI facial

recognition systems are governed primarily by two statutes: the Privacy

Act of 1974

342

and the E-Government Act of 2002.

343

These statutes

require that the FBI conduct Privacy Impact Assessments (“PIA”s) of its

biometric programs and that it employ Fair Information Practices

Principles (“FIPPS”).

344

PIAs analyze how personal identifiable

information is handled in electronic systems and determine the risk of

335

. Id.

336

. Clare Garvie & Jonathan Frankle, Facial Recognition Software Might Have a Racial Bias

Problem, ATLANTIC (Apr. 7, 2016),

https://apexart.org/images/breiner/articles/FacialRecognitionSoftwareMight.pdf.

337

. Id.

338

. John D. Woodward, et al., Biometrics: A Look at Facial Recognition, RAND 13,

https://www.rand.org/pubs/documented_briefings/DB396.html (last visited Feb. 22, 2020).

339

. Id. at 11. (explaining that in a British study conducted at a supermarket, 34% of the cards

accepted by trained supermarket cashiers had a picture of a person that did not look like the shopper

and 7% of the rejected cards contained a picture of the actual shopper).

340

. Garvie et al., supra note 311.

341

. Martin, supra note 299, at *2.

342

. 5 U.S.C. § 552a (2014).

343

. 44 U.S.C. § 101 (1996); 44 U.S.C. § 3501 et seq (2002); Sharon Nakar & Dov Greenbaum,

Now You See Me, Now You Still Do: Facial Recognition Technology and the Growing Lack of

Privacy, 23 B.U. J. SCI. & TECH. L. 88, 105 (2020).

344

. Id. at 105-06.

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collecting, maintaining, and disseminating this information.

345

Meanwhile, FIPPs highlight the importance of transparency, consent,

limited use, data quality, data minimization, security, and accountability

when dealing with personal identifiable information.

346

Efforts to implement laws that specifically target FRT use are

underway. Last year, the House of Representatives passed an amendment

to the Intelligence Authorization Act for the Fiscal Year 2020,

347

which

would require that the Director of National Intelligence report FRT use,

accuracy, policies, and its potential impact on constitutional rights.

348

Meanwhile, two Senators have introduced the Facial Recognition

Technology Warrant Act, which would require federal law enforcement

to obtain a warrant to use FRT for tracking the movements of a person for

more than three days.

349

Other recently proposed bills include the

Algorithmic Accountability Act,

350

the Commercial Facial Recognition

Privacy Act,

351

the No Biometric Barriers Act,

352

the FACE Protection

Act

353

, and H.R.3875.

354

The Algorithmic Accountability Act would

require that entities storing personal information conduct impact

assessments of their automated decision systems.

355

The Commercial

Facial Recognition Privacy Act would prohibit commercial entities from

using FRT to identify consumers without their consent.

356

The No

345

. Department of Justice /FBI Privacy Impact Assessments (PIAs), FBI,

https://www.fbi.gov/services/information-management/foipa/privacy-impact-assessments (last

visited Feb. 5, 2020).

346

. National Domestic Communications Assistance Center: Executive Board Meeting, FBI (Sept.

21, 2016), https://ndcac.fbi.gov/file-repository/2016-september-fair-information-practice-

principles.pdf/view.

347

. See HPSCI Fact Sheet on H.R. 3494 Fiscal Year 2020 Intelligence Authorization Act, U.S.

HOUSE OF REPRESENTATIVES PERMANENT SELECT COMMITTEE ON INTELLIGENCE,

https://intelligence.house.gov/uploadedfiles/fact_sheet_on_2020_iaa.pdf.

348

. See Amendment to Rules Committee (July 15, 2019), https://amendments-

rules.house.gov/amendments/JAYAPA_066_xml71519135205525.pdf; see also Oakland Approves

Face Recognition Surveillance Ban as Congress Moves to Require Government Transparency,

ACLU (July 17, 2019), https://www.aclu.org/press-releases/oakland-approves-face-recognition-

surveillance-ban-congress-moves-require-government (noting that the ACLU is now urging

Congress to vote in favor of this amendment).

349

. See Facial Recognition Technology Warrant Act of 2019, S.2878, 116th Cong. (2019).

350

. See Algorithmic Accountability Act of 2019, H.R. 2231, 116th Cong. (2019).

351

. See Commercial Facial Recognition Privacy Act of 2019, S.847, 116th Cong. (2019).

352

. See No Biometric Barriers to Housing Act of 2019, H.R. 4008, 116th Cong. (2019).; Inioluwa

Raji et al., Saving Face: Investigating the Ethical Concerns of Facial Recognition Auditing, in

PROCEEDINGS OF THE 2020 AAAI/ACM CONFERENCE ON AI, ETHICS, AND SOCIETY 145 (Feb.

2020), available at https://arxiv.org/pdf/2001.00964.pdf.

353

. See FACE Protection Act of 2019, H.R.4021, 116th Cong. (2019).

354

. See To prohibit Federal funding from being used for the purchase or use of facial recognition

technology, and for other purposes, H.R.3875, 116th Cong. (2019).

355

. See H.R. 2231.

356

. See S. 847.

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Biometric Barriers Act would bar FRT use in public housing

357

and the

FACE Protection Act would prohibit federal agencies from applying FRT

to government-issued IDs without a court order.

358

Finally, H.R.3875

would prohibit using federal funds to purchase and utilize FRT.

359

On the state level, California, Oregon, and New Hampshire have

started to regulate FRT use in the public sector by banning the use of FRT

in police body cameras.

360

Several states have also enacted laws to

regulate FRT outside of law enforcement. Illinois passed the Biometric

Information Privacy Act, which sets up significant restrictions on how

private companies obtain and use an individual’s biometric data.

361

This

law requires firms that collect information to notify the person that his or

her biometric profile is going to be collected, provide the reason for the

collection, explain the length of time the information is to be collected,

retained, and used, create a written, publicly available policy that details

a retention schedule, and secure a written release from the person before

collecting any biometric information or sharing the biometric data with

another entity.

362

The Act also creates a private cause of action, allowing

individuals to bring a suit for a mere violation of the law.

363

New York enacted the Stop Hacks and Improve Electronic Data

Security (“SHIELD”) Act, which became effective on March 21, 2020.

364

The SHIELD Act requires businesses to implement protections for the

"private information" of New York residents and expands the state’s

security breach notification requirements.

365

The SHIELD Act states that

any business that stores the private information of New York residents,

such as biometrics and driver’s license information, must "develop,

implement, and maintain reasonable safeguards to protect the security,

357

. See H.R. 4008.

358

. See H.R.4021.

359

. See H.R.3875.

360

. Benjamin Hodges & Kelly Mennemeier, The Varying Laws Governing Facial Recognition

Technology, IP WATCHDOG (Jan. 28, 2020), https://www.ipwatchdog.com/2020/01/28/varying-

laws-governing-facial-recognition-technology/id=118240/. See also Assemb. Bill 1215, 2019-2020

Reg. Sess. (Ca. 2019). (California law prohibiting the use of FRT in body worn cameras until

January 2023); H.R. 2571, 78th Or. Leg. Assemb., Reg. Sess. (Or. 2015).(Oregon law prohibiting

the use of FRT to analyze body worn camera recordings); N.H. Rev. Stat. Ann. § 105-D:2 (2016).

(New Hampshire law prohibiting the use of FRT to analyze body worn camera recordings).

361

. Hodges & Mennemeier, supra note 361.

362

. Landmark Ruling on the Illinois Biometric Information Privacy Act, WINSTON & STRAWN

(Jan. 30, 2019), https://www.winston.com/en/thought-leadership/landmark-ruling-on-the-illinois-

biometric-information-privacy-act.html.

363

. Id.

364

. Philip Gordon & Jennifer Taiwo, The New York SHIELD Act: What Employers Need to Know,

SHRM (Aug. 28, 2019), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-

local-updates/pages/new-york-shield-act.aspx.

365

. ID.

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confidentiality, and integrity of the private information."

366

Unlike the

law in Illinois, the SHIELD Act does not create a private cause of action.

Instead, it enables the state's attorney general to enforce the mandates.

367

Texas has a privacy act that forbids obtaining a person’s biometric

identifiers for commercial purposes unless the individual is first provided

with notice and consents to the use. The state also limits the sale or

disclosure of a person’s biometric identifiers except under specific

conditions.

368

Washington has a biometric protection law that bars any

business or person from inputting biometric data into a database without

giving notice, obtaining the person’s consent, and offering a way to

prevent subsequent use of the information for a commercial purpose.

369

Other similar state mandates include: 1) New Hampshire’s statute

prohibiting the Department of Motor Vehicles (“DMV”) from using FRT

when taking and retaining pictures,

370

2) Maine’s statute requiring state

officials to issue rules that limit FRT use in drones,

371

3) Washington’s

law requiring the DMV to notify license applicants that FRT may be used

to verify their identities and restricting the disclosure of results

372

and 4)

Missouri’s statute prohibiting the Department of Revenue from using

FRT to produce a license or identify licensees.

373

The number of states regulating FRT is likely to grow since the

legislatures of eleven other states have introduced bills limiting FRT-use

in both the public and private sectors. These states are Idaho,

374

Indiana,

375

Maryland,

376

Massachusetts,

377

Michigan,

378

Minnesota,

379

Nebraska,

380

New Jersey,

381

South Carolina,

382

Vermont,

383

and

366

. Id.

367

. Id.

368

. State Biometric Privacy Legislation: What You Need to Know, THOMPSON HINE(Sept. 5,

2019), https://www.thompsonhine.com/publications/state-biometric-privacy-legislation-what-you-

need-to-know

369

. Id.

370

. N.H. REV. STAT. ANN. § 263:40-b (2014).

371

. ME. REV. STAT. ANN. tt. 25, § 4501(5)(D) (2015).

372

. WASH. REV. CODE ANN. § 46.20.037(3) (West 2012).

373

. MO. REV. STAT. § 302.170 (2019).

374

. H.R. 492, 65th Leg., 2d Reg. Sess. (Id. 2020).

375

. H.R. 1238, 121st Gen. Assemb., 2d Reg. Sess. (In. 2020).

376

. S. 613, Reg. Sess. (Md. 2019); see also S.46, Reg. Sess. (Md. 2020).

377

. S.1385, 191st Gen. Court (Ma. 2019). ; S. 1429, 191st Gen. Court (Ma. 2019); H.R. 1538,

191st Gen. Court (Ma. 2019).

378

. S. 342, 2019-2020 Leg. Sess. (Mich. 2019); H.R. House 4810, 2019-2020 Leg. Sess. (Mich.

2019).

379

. S.1430, 91st Leg. (Minn. 2019); H.R. 1236, 91st Leg. (Minn. 2020).

380

. S.746, 160th Leg., 2d Sess. (Neb. 2020).

381

. S.116, 219th Leg., Reg. Sess. (N.J. 2020); G.A. 1210, 219th Leg., Reg. Sess. (N.J. 2020).

382

. H.R. 4709, 123rd Sess. (S.C. 2020).

383

. H.R. 470, 2019-2020 Reg. Sess. (Vt. 2019); H.R. 595, 2019-2020 Reg. Sess. (Vt. 2020).

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Virginia.

384

Some cities have also started taking matters into their own

hands. San Francisco, Oakland, and Somerville have passed ordinances

that prohibit local authorities from using FRT.

385

In an unusual move,

Portland, Oregon is taking steps to become the first city to ban both law

enforcement and private entities from using FRT.

386

Finally, some law

enforcement entities have voluntarily limited their use of FRT. For

instance, the Seattle Police Department has stopped using FRT because

of apprehension over bias and inaccurate results and the Detroit Police

Department will only allow the utilization of FRT when it appears

reasonably likely to help in the investigation of a violent crime.

387

The

Utah Department of Public Safety has also placed restrictions on FRT in

active criminal cases, and Portland, Oregon will likely soon follow suit.

388

E. How Can the Defense Recognize a Facial Recognition Case

Facial identification obtained through a software application cannot be

used in court as substantive evidence since the technology is not able to

conclusively match a picture to an identity and there continue to be

accuracy issues. Therefore, facial identification is not a scientifically

reliable tool that can overcome a Frye or Daubert challenge.

389

present, the technology should only be employed to develop leads in an

investigation so its disclosure to defense counsel might not always be

forthcoming.

390

As noted in People v. Carrington, “law enforcement

[does] not use facial recognition technology as the sole basis to identify

384

. H.R.J. Res. 59, 2020 Reg. Sess. (Va. 2020).

385

. See S.F., Cal., Ordinance 107-19 (May 21, 2019) (“[I]t shall be unlawful for any Department

to obtain, retain, access, or use: 1) any Face Recognition Technology; or 2) any information obtained

from Face Recognition Technology.”); Ordinance Amending Oakland Municipal Code Chapter

9.64, (“[P]rohibit the City from acquiring, obtaining, retaining, requesting, or accessing Face

Recognition Software.”); Somerville, Mass., Ordinance 2019-16 (June 27, 2019) (“It shall be

unlawful for Somerville or any Somerville official to obtain, retain, access, or use: (1) [a]ny face

surveillance system; or (2) [a]ny information obtained from a face surveillance system.”).

386

. See Portland, Or., Ordinance (Nov. 08, 2019), available at

https://www.eff.org/files/2019/11/18/434828951-portland-unveils-facial-recognition-ban-

proposal.pdf (“Bureaus shall not acquire, evaluate or use Facial Recognition Technologies . . . [and]

shall not use, access or retain any information derived from Facial Recognition Technologies”); see

also Developing a Facial Recognition Policy in Portland, PORTLAND.GOV (Dec. 11, 2019),

https://beta.portland.gov/bps/news/2019/12/11/developing-facial-recognition-policy-portland

(explaining that a policy regulating FRT-use in the private sector is still at the research stage).

387

. Hodges & Mennemeier, supra note 361.

388

. Martin, supra note 299.

389

. Kaitlin Jackson, Challenging Facial Recognition Software in Criminal Cases, NACDL (2019),

https://www.nacdl.org/getattachment/548c697c-fd8e-4b8d-b4c3-2540336fad94/challenging-facial-

recognition-software-in-criminal-court_july-2019.pdf; see also People v. Collins, 15 N.Y.S.3d

564,576 (Sup. Ct. 2015) (noting that the evidence that facial recognition technology produces has

value, but it has not been accepted as reliable by relevant scientific communities).

390

. Jackson, supra note 390, at 14.

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or eliminate a suspect.”

391

Therefore, the defense should learn how to

recognize when FRT might have been used during a criminal

investigation.

392

In this regard, the defense may present a viable

challenge when facial recognition evidence is used to make an arrest

without probable cause or in cases involving the arrest of the wrong

person.

393

Defense counsel should consider the possibility that the police used

FRT to identify a suspect whenever there is a possibility of

misidentification because the defendant was suspected of committing the

offense from the initiation of the investigation, if there was a photo or

video of the incident, or if there was an eyewitness to the event.

394

If the

answer is yes to any of these questions, defense counsel should try to

ascertain whether FRT was used.

395

This may involve a simple phone call

to the prosecutor asking for clarification or the issuance of a discovery

demand depending on the law in the jurisdiction.

396

This is important

because the disclosure of facial recognition use may not be forthcoming

since the government rarely intends to introduce the algorithm results at

trial.

397

Lynch v. State of Florida provides an example of where the defendant

unsuccessfully tried to obtain the algorithm images. This matter involved

the discovery of photographs generated by a facial recognition system of

potential suspects other than the defendant.

398

The facts show that an

undercover officer purchased crack cocaine from a person known as

“Midnight.”

399

During the purchase, an officer used his cell phone to take

a picture of Midnight who was leaning into the car.

400

Subsequently, the

officer sent the picture to a crime analyst who provided the police with

the defendant’s name and photograph as the result of database searches

generated by the use of a facial recognition program.

401

At trial, the defendant demanded that the government produce the other

pictures in the databases of the people who were also known as

“Midnight.”

402

The court denied the request as being irrelevant and the

defendant was found guilty. The defendant then asserted that the facial

391

. People v. Carrington, No. B265888, 2018 WL 671903, at *11 (Cal. Ct. App. Feb. 2, 2018).

392

. Jackson, supra note 390, at 15.

393

. Id. at 16.

394

. Id.

395

. Id. at 16-17.

396

. Id. at 17.

397

. Id. at 20.

398

. Lynch v. State, 260 So.3d 1166 (Fla. Dist. Ct. App. 2018).

399

. Id. at 1168.

400

. Id.

401

. Id. at 1169.

402

. Id.

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recognition software had returned other pictures as possible matches. He

contended that those pictures would have cast doubt on the state’s case

and that the government’s failure to produce the images was a violation

of Brady v. Maryland.

403

The court rejected this argument because there was no reasonable

probability that the trial results would have been any different if such a

disclosure had been made.

404

The defendant could not show that the other

pictures in the database resembled him to cause a misidentification nor

could he show that anyone in those pictures would have been the

culprit.

405

F. Court Cases involving FRT

The government will rarely attempt to use the results of facial

recognition software as the sole evidence in a criminal case. Rather, it is

merely a tool that helps to develop other evidence and thus few criminal

cases are devoted to the topic. Usually, discussions about facial

recognition are in the context of a piece of evidence in the chain that led

to the identification of a suspect. As noted in People v. Carrington,

FRT is in its infancy and the science is evolving, as well as its reliability

and accuracy.

406

At present, the government does not use FRT as “the

sole basis to identify or eliminate a suspect.”

407

In a civil litigation context, FRT might arise in an invasion of privacy

claim, or as a violation of a regulation of biometric technology against

entities such as Shutterfly, Facebook, Microsoft, Google and other

businesses that use FRT.

A Westlaw search using the words “facial recognition technology”

disclosed 73 criminal and civil matters.

408

While the Fourth Amendment

protects citizens against unreasonable searches, it is uncertain whether

having images of the people’s faces run through facial recognition

systems constitutes a search. Like license plate readers, body-worn

cameras and drones, FRT falls into a “constitutional grey area.”

409

Existing case law, however, sheds some light on the possible outcomes

once the issue inevitably reaches the Supreme Court. The next sections

will provide examples of arguments that could be used in criminal cases

to keep any reference about FRT out of evidence or permit its mention at

403

. Brady v. Maryland, 373 U.S. 83 (1963).

404

. Lynch, 260 So.3d at 1170.

405

. Id.

406

. Carrington, 2018 WL 671903, at *11.

407

. Id.

408

. This search was conducted by the authors on February 22, 2020.

409

. Garvie et al., supra note 311.

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the time of trial.

1. Cases That Would Support the Use of FRT in Court

U.S. v. Dionisio presents a Supreme Court analogy that would allow

facial recognition technology to be a permissible police tool. This case

dealt with a constitutional challenge to a grand jury subpoena requesting

voice recordings from twenty individuals for identification purposes.

410

Dionisio and other witnesses refused to provide a voice recording and

argued that being compelled to do so would violate their Fourth and Fifth

Amendment rights.

411

The Supreme Court found that a person does not

have a reasonable expectation of privacy over physical characteristics that

he exposes to the public.

412

“No person can have a reasonable expectation

that others will not know the sound of his voice, any more than he can

reasonably expect that his face will be a mystery to the world.”

413

The

Court also opined that no valid Fifth Amendment claim had been raised

since the privilege against self-incrimination prohibits compelling

communications, not forcing a person to submit a photograph or to speak

for identification purposes.

414

Moreover, in Smith v. Maryland, the Supreme Court held that “a person

has no legitimate expectation of privacy in information he voluntarily

turns over to third parties.”

415

In Smith, the Government installed a pen

telephone numbers the defendant dialed.

416

Smith argued that he expected

this information to remain private; but the Court disagreed.

417

The Court

explained that when a person shares telephone numbers with a telephone

company for business purposes, he cannot expect these numbers to remain

a secret.

418

The judges essentially determined that a person assumes the

risk “in revealing his affairs to another, that the information will be

conveyed by that person to the Government.”

419

410

. United States v. Dionisio, 410 U.S. 1, 3 (1973).

411

. Id.

412

. Id. at 14.

413

. Id.

414

. Id. at 6 (quoting Schmerber v. California, 384 U.S. 757 (1966)).

415

. Smith v. Maryland, 442 U.S. 735, 743-44 (1979).

416

. Id. at 737.

417

. Id. at 743-44.

418

. Id. at 744.

419

. Id. But see 18 U.S.C. § 3121(a) (overruling Smith by requiring a court order to install a pen

because violation of the statute does not result in an unconstitutional search and Congress did not

provide for exclusion of evidence for violation of the statute.” United States v. Allen, No. ACM

32727, 1999 WL 305093, at *6 (A.F. Crim. App. Apr. 22, 1999) (citing United States v. Thompson,

936, F.2d 1249 (11th Cir. 1991)).

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Because the databases accessed by FRT are filled with photos

voluntarily provided for licensing, employment, immigration, and other

purposes, the third-party doctrine could be used to support the argument

that the photos are not protected by the Fourth Amendment.

The Supreme Court eventually moved on from recognizing that certain

information is not protected by the Fourth Amendment to determining

that the use of certain technology to gather such information does not

constitute a search. In U.S. v Knotts, the Supreme Court found that using

warrantless monitoring of a beeper to track the defendant’s movements

did not violate the defendant’s Fourth Amendment rights since there was

no legitimate expectation of privacy.

420

The Supreme Court explained

that the Fourth Amendment does not prohibit the police from

“augmenting the sensory faculties bestowed upon them at birth with such

enhancement as science and technology afforded them in this case.”

421

This decision suggests that FRT is merely another piece of permissible

sensory-augmenting technology as it merely does something that the

naked eye could do: look at two images and determine whether they

portray the same person.

2. Cases That Would Oppose the Use of FRT in Court

The following are some of the cases suggesting that the use of FRT

would violate the Constitution. Although a person does not have a

reasonable expectation of privacy over his facial characteristics, some

scholars rely on the two-prong test in Katz v. Untied States to argue that

a person does have a reasonable expectation of privacy over his

identity.

422

Under Katz, a violation of the Fourth Amendment only occurs

when it can be shown that a subjective expectation of privacy is present,

and that expectation is one that society acknowledges as being objectively

reasonable.

423

The first prong of this test is satisfied because although

people may expose their facial characteristics to the public, they often do

not volunteer identifying information. The second prong is also fulfilled

because the Supreme Court has made it clear that an expectation of

privacy is reasonable if it is “established by general social norms.”

424

Polls reveal that 60% of Americans feel that they should be able to be out

in public without being identified and 93% believe that they should be

able to control who obtains information about them, so it is not hard to

420

. United States v. Knotts, 460 U.S. 276 (1983).

421

. Id. at 282.

422

. Katz v. United States, 389 U.S. 347, 360-61 (1967).

423

. Id. at 361.

424

. Robbins v. California, 453 U.S. 420, 428 (1981).

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72 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

categorize privacy over our identity as a social norm.

425

The capabilities of the technology itself and the fact that FRT is not in

general circulation can be used to argue that the use of FRT constitutes a

search. For instance, in Kyllo v. United States, the Supreme Court

determined that law enforcement officials had performed an unlawful

search when they relied upon thermal imaging technology not available

for use by the general public to gather information about the inside of a

house.

426

Similarly, FRT can only be used by law enforcement and large

companies capable of compiling a database of pictures.

427

It could even

be argued that FRT is used to view the bone structure underneath our skin

“since that is what facial recognition software can essentially do: create a

digital wireframe, or skeleton, of a person’s face.”

428

While Kyllo addressed information-gathering technology that could

have only been obtained through a physical intrusion, the Supreme Court

has also addressed technology that gathers publicly available information.

In United States v. Jones, Justice Alito suggested that a GPS device does

more than augment the senses, since it allows law enforcement to do

things that would otherwise be impracticable.

429

Although law

enforcement could have followed the defendant, doing so for a month

would have been costly, difficult, and impractical.

430

Similarly in

Carpenter v. United States, the Court described the collection of cell-site

location information as inescapable and automatic because, unlike a nosy

neighbor, GPS devices “are ever alert, and their memory is nearly

infallible.”

431

These cases suggest that the Court could find that FRT, unlike the

beeper that signaled the presence of an automobile to a police receiver in

Knotts, does more than augment “the sensory faculties bestowed upon

them at birth.”

432

425

. Mariko Hirose, Privacy in Public Places: The Reasonable Expectation of Privacy Against the

Dragnet Use of Facial Recognition Technology, 49 CONN. L. REV. 1591, 1613 (2017).

426

. Kyllo v. United States, 533 U.S. 27, 40 (2001).

427

. With 350 million pictures being uploaded into Facebook and 95 million pictures being

uploaded into Instagram every day, these platforms have access to over 290 billion pictures. Sean

O’ Hagan, What Next for Photography in the Age of Instagram, GUARDIAN (Oct. 14, 2018),

https://www.theguardian.com/artanddesign/2018/oct/14/future-photography-in-the-age-of-

instagram-essay-sean-o-hagan.

428

. Elizabeth Snyder, “Faceprints” and the Fourth Amendment: How the FBI Uses Facial

Recognition Technology to Conduct Unlawful Searches, 68 SYRACUSE L. REV. 255, 268 (2018).

429

. Elizabeth E. John, Artificial Intelligence and Policing: Hints in the Carpenter Decision, 16

Ohio St. J. Crim. L. 281, 287 (2018).

430

. See United States v. Jones, 565 U.S. 400, 429-30 (2012) (Alito, J., concurring) (explaining that

this type of surveillance would have required several agents, multiple vehicles, and aerial assistance,

which are resources that would have been reserved for cases of unusual importance).

431

. Carpenter v. United States, 138 S. Ct. 2206, 2219 (2018).

432

. United States v. Knotts, 460 U.S. 282-83 (1983).

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3. First Amendment Concerns with FRT

There is also disagreement as to whether FRT may infringe on a

person’s First Amendment rights. In Laird v. Tatum, Vietnam War

protestors argued that the government disregarded their First Amendment

rights when Army surveillance tracked those who attended public

meetings and kept a record of those who spoke.

433

The Supreme Court

held that no valid claim had been presented since the government’s

surveillance did not have a deterrent effect.

434

The Court explained that

the protestors’ claim was based on the existence of the government’s data-

gathering system, and the Court refused to recognize that a deterrent

effect could arise “merely from the individual’s knowledge that a

governmental agency was engaged in certain activities or from the

individual’s concomitant fear that . . . the agency might in the future take

some other and additional action detrimental to that individual.”

435

Laird,

therefore, suggests that using FRT to identify those in attendance at public

events does not raise any First Amendment concerns.

However, some cases suggest that anonymity is a necessary safeguard

to guarantee freedom of speech and association. For instance, in NAACP

v. Alabama, the National Association for the Advancement of Colored

People (“NAACP”) refused to comply with a court order directing it to

produce, among other things, a list of its members.

436

The Supreme Court

recognized that there is a vital relationship between privacy and the

freedom to associate, and therefore found that the court order would

restrain the right of NAACP members to exercise such freedom.

437

The

Court explained that complying with the court order could result in

members withdrawing and dissuade others from joining out of fear that

their beliefs would be exposed.

438

Similarly, in Talley v. California, the Court found that an ordinance

prohibiting the distribution of handbills unless they included the name and

address of the person distributing them restricted freedom of

expression.

439

The Court explained that persecuted groups have used

anonymity to criticize oppressive practices and laws, and “identification

and fear of reprisal might deter perfectly peaceful discussion of public

matters of importance.”

440

Talley and NAACP provide the basis for arguing that FRT infringes on

433

. Laird v. Tatum, 408 U.S. 1, 6 (1972).

434

. Id. at 11.

435

. Id.

436

. NAACP v. Alabama, 357 U.S. 449, 451 (1958).

437

. Id. at 462.

438

. Id. at 463.

439

. Talley v. California, 362 U.S. 60, 65 (1960).

440

. Id. at 64-65.

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74 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

a person’s First Amendment rights. When FRT is combined with other

forms of technology, it identifies individuals in attendance at protests,

political rallies and religious ceremonies in real-time.

441

This would

discourage attendance by those critical of the government and those who

hold unpopular opinions out of fear that they will be identified and be

subject to negative repercussions. After all, people tend to alter their

behavior when they know or suspect that they are being watched.

442

Although FRT technology is being employed by law enforcement to carry

out important responsibilities, it could come at the high cost of self-

censorship.

4. Lower Court Cases Involving FRT

There are several lower court cases in which FRT played some role in

the litigation. The earliest ruling allowing the use of facial recognition

evidence occurred in San Francisco in 2011.

443

The case involved a

defendant who had been convicted of murder and sentenced to twenty-

five years in jail. The trial judge allowed the biometric proof to be

admitted as evidence, which helped to exonerate the accused. The impact

of FRT in this case surprised many legal professionals since the

technology is still novel.

444

Facial recognition software was used to help identify a criminal

defendant when the video recording of an assault was posted on

Facebook. In the case of In re the Interest of K.M., A Minor, the defendant

contended that his conviction for aggravated assault and conspiracy was

improper because he was only a bystander to the incident.

445

The evidence

demonstrated that the victim was walking home from school when he was

confronted by the defendant and his accomplices. The defendant filmed

the encounter between the victim and his co-conspirators in which the

student was punched and kicked for no reason.

446

The video was then

posted on YouTube and the police identified the defendant through facial

recognition software on Facebook. The suspect was arrested and his

441

. In 2016, nine out of thirty-eight body-worn-camera manufacturers had incorporated facial

recognition technology into their units or were contemplating it. Katelyn Ringrose, Law

Enforcement’s Pairing of Facial Recognition Technology with Body-Worn Cameras Escalates

Privacy Concerns, 105 VA. L. REV. ONLINE 57, 60 (2019).

442

. See Americans’ Privacy Strategies Post-Snowden, PEW RES. CENTER 4 (Mar. 16, 2015),

https://perma.cc/D54F-G343 (noting that after learning about NSA surveillance from Edward

Snowden’s revelation, 22% of America adults changed their online behavior).

443

. A First: Biometrics Used to Sentence Criminal, HOMELAND SECURITY NEWS WIRE (Feb. 1,

2011), http://www.homelandsecuritynewswire.com/first-biometrics-used-sentence-criminal.

444

. Id.

445

. In re K.M., No. 2721 EDA 2014, 2015 WL 7354644 (Pa. Super. Ct. Nov. 20, 2015).

446

. Id.

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phone, which was seized under a warrant, contained the video of the

fight.

447

The court upheld the identification and properly adjudged the

juvenile delinquent since his phone's camera was running before the

assault. The running camera suggested that the attack was planned and

that the parties were working together moments before the assault,

thereby creating the inference that they agreed that one or more of them

would participate in the confrontation.

448

Geiger v. Maryland involved theft by deception.

449

The facts show that

a tire store employee received a call from a Brian Johnson requesting tires

for his car. The next day, Johnson went to the store and orally provided

his credit card number, since he claimed that he did not have the card with

him.

450

As an additional measure of identification, he produced a North

Carolina driver’s license that contained his picture. It turned out that the

credit card was stolen, and the driver’s license was fake.

451

Johnson’s

picture from the license was run through a database and facial recognition

software matched it to a Maryland driver’s license. The judge was shown

both pictures at trial, and the court determined that they showed the same

man.

452

During the testimony of the investigating detective, the state offered

into evidence a copy of the Maryland picture that was located though

FRT. The defense vigorously protested the picture’s introduction but the

trial judge ruled that the defendant “doesn’t have a right to protect his

image,” and it was defense counsel who mentioned facial recognition

technology in the first place.

453

The court opined that no error had been

committed because the computerized identification was not being used as

evidence but was simply a guide used by the detective to put the

investigation ”on the right track.”

454

At no time did the detective testify

in any manner about FRT and the state never questioned him about facial

profiling.

455

Therefore, when utilized to direct the investigation, the use

of FRT technology did not invalidate the defendant’s conviction.

456

In United States v. Gibson, the defendant secured a Florida driver’s

license under the false name of Gregory Gibson.

457

He then applied for a

447

. Id.

448

. Id. at 6.

449

. Geiger v. Maryland, 174 A.3d 954, 956 (Md. 2017).

450

. Id. at 956.

451

. Id. at 957.

452

. Id.

453

. Id. at 964.

454

. Id. at 965.

455

. Id.

456

. Id.

457

. United States v. Gibson, No. 8:00-CR-442-T-27AEP, 2016 WL 845272, at *2 (M.D. Fla. Mar.

4, 2016).

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76 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

passport and submitted a false application under the fictitious name. The

application was flagged as fraudulent and the authorities tried to locate

the defendant to no avail.

458

Several years later, an analyst conducted a

facial recognition check and linked the fake picture to the driver’s license

of Anthony Lazzara. This individual was arrested at the address listed on

the valid license.

459

A subsequent fingerprint search revealed a host of

aliases and a criminal record linked to the defendant.

460

The defendant objected to the time delay between when he submitted

the false passport application and his trial.

461

His motion to dismiss the

case as a violation of the right to a speedy trial, however, was denied. The

court noted that the defendant caused the delay by using various aliases

and false identifications.

462

This deception thwarted his apprehension

through traditional investigative tools such as the fingerprint database.

The agent further stated that he did not have initial access to FRT because

of privacy concerns.

463

Therefore, any delay on the part of the government

was considered a slight negligence at the worst and the defendant did not

suffer any prejudice.

464

Montanez v. Department of Transportation involves a suspension of a

driver’s license in Pennsylvania. In Montanez, facial recognition

software determined that the defendant had obtained a driver's license

using a false identity.

465

The driver had received multiple citations over a

period of time from 2006 to 2010 under the name of DeLeon. He used the

name Montanez to obtain a different license in 2013 as well as a

commercial driver’s license in 2016. In 2017, Montanez renewed his

driver's license and the Department of Transportation used facial

recognition software to compare driver's license pictures to others in the

government’s database.

466

At this time, the Department of Transportation

learned that DeLeon and Montanez were the same person. While the court

never discussed the use of FRT, it upheld the suspension of the license

because of the fraud perpetrated by the defendant—which necessarily

rested on the use of FRT.

467

In the case of In re Matter of the Search of a Residence in Oakland,

two individuals were suspected of engaging in extortion via Facebook

458

. Id. at *2.

459

. Id.

460

. Id.

461

. Id. at *1.

462

. Id. at *2.

463

. Id. at *3.

464

. Id..

465

. Montanez v. Dep’t of Transp., No. 1150 C.D. 2018, 2019 WL 2997381, at *2 (Pa. Commw.

Ct. 2019).

466

. Id.

467

. Id. at *4-5.

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2020] BIG BROTHER IS WATCHING 77

Messenger.

468

The Government sought to seize the electronic devices

located at the suspects’ residence, and the court found that the facts in the

affidavit supported a finding of probable cause.

469

However, the

Government also sought to compel any individuals located at the

residence to use their biometric features (such as a fingerprint or a facial

scan) to unlock the electronic devices to search their contents.

470

The

Court found that this subsequent request violated the Fifth Amendment

privilege against self-incrimination.

471

The Court reached this conclusion by first noting that courts have

previously held that suspects cannot be compelled to provide the passcode

for an electronic device.

472

The Court recognized that while some acts

could qualify as testimonial “if conceding the existence, possession, and

control, and authenticity of the documents tended to incriminate them,”

other acts such as providing a blood sample or a fingerprint did not

constitute a communication.

473

The Court finally concluded that

compelling the use of biometric features to unlock a device was not akin

to compelling someone to submit to fingerprinting or provide a DNA

sample for two reasons.

474

First, biometric features in these types of cases

serve the same purpose as a passcode, so if a person cannot be compelled

to provide his or her passcode the person cannot be compelled to use their

biometric features.

475

Second, while compelling someone to submit to

fingerprinting merely confirms whether he or she is the source of physical

evidence,

476

compelling someone to use biometric features to unlock a

device confirms ownership or control of the device as well as control or

significant connection to its contents.

477

FRT has also been addressed in civil suits against private entities. In

Monroy v. Shutterfly, Inc, several individuals sued Shutterfly for

collecting and using their facial geometry without their consent in

468

. In re Search of a Residence in Oakland, 354 F. Supp. 3d 1010, 1013 (N.D. Cal. 2019).

469

. Id.

470

. Id.

471

. See id. at 1013-14 (explaining that the court also found that the Government’s request violated

the Fourth Amendment because it was not limited to a particular person or device and the

Government could not be allowed to search a non-suspect’s device simply because they are present

during a lawful search).

472

. Id. at 1015 (“The expression of the content of an individual’s mind falls squarely within the

protection of the Fifth Amendment.”).

473

. Id.

474

. Id.

475

. Id. at 1015-16.

476

. Id. at 1016.

477

. See id. (“With a touch of a finger, a suspect is testifying that he or she has accessed the phone

before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently

has some level of control over or relatively significant connection to the phone and its contents.”).

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78 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

violation of Illinois’ Biometric Information Privacy Act (“BIPA”).

478

Shutterfly moved to dismiss the complaint by claiming that BIPA did not

cover facial geometry obtained from photos and that plaintiffs failed to

allege actual damages.

479

Guided by the statutory definitions, the court

concluded that a facial scan did not constitute “biometric information,”

480

but did constitute a “biometric identifier.”

481

The court explained that a

facial scan was referenced in the definition of “biometric identifier,”

482

and limiting these scans to those obtained in person was not supported by

the statute’s purpose of “protecting privacy in the face of emerging

biometric technology.”

483

As for Shutterfly’s second claim, the court

found that BIPA does not require a showing of actual damages to state a

claim.

484

The court reached this conclusion by noting that other statutes

have been interpreted to allow recovery without a showing of actual

damages.

485

In Patel v. Facebook, Inc. several website users filed suit against

Facebook, claiming that the social media giant used facial-recognition

technology without complying with BIPA.

486

The case involves

Facebook’s feature known as “Tag Suggestions”. If activated, Facebook

may use FRT to ascertain whether the customer’s friends are contained in

pictures uploaded by that user. If a picture is downloaded, FRT will scan

the image to see if it includes any faces of known people.

487

If known

people are present in the image, the software detects the geometric data

points that generate a face signature or a map. The software then compares

the face signature to other images in the company’s database of user face

templates. If a match is found, Facebook informs the user to tag the person

in the picture.

488

Facebook filed a motion to dismiss the complaint for lack of standing

because the plaintiffs had not claimed any identifiable injury. This motion

was denied and an appeal was taken of that determination.

489

In upholding

this decision, and certifying the matter as a class action, the 9

Circuit

found that “an invasion of an individual's biometric privacy rights has a

478

. Monroy v. Shutterfly, Inc., No. 16 C 10984, 2017 U.S. Dist. LEXIS 149604, at *2-3 (N.D. Ill.

Sept. 15, 2017).

479

. Id. at *5.

480

. Id. at *7.

481

. Id. at *14.

482

. Id. at *8.

483

. Id. at *14.

484

. Id. at *26.

485

. Id. at *23-25.

486

. Patel v. Facebook, Inc., 932 F.3d 126, 1267 (9th Cir. 2019).

487

. Id. at 1268.

488

. Id.

489

. Id. at 1269-70.

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close relationship to a harm that has traditionally been regarded as

providing a basis for a lawsuit in English or American courts.”

490

Once

Facebook creates a face template of that person, the potential uses are

endless. The company can use the information to tag the user in the

hundreds of millions of photos uploaded to Facebook each day and

identify whether the person’s Facebook friends are also present in the

picture.

491

According to the court, Facebook's assemblage, use, and

storage of customer’s facial templates is the very harm contemplated by

the statute.

492

Facebook appealed this adverse ruling to the Supreme

Court, but the Court denied certiorari .

493

On January 30, 2020, Facebook settled this claim for $550 million,

marking one of the largest settlements ever made in a privacy lawsuit.

494

Paul Geller--one of the attorneys representing the plaintiffs-- admitted he

was “hopeful that this case is a turning point for privacy litigation.

Technology is advancing at a rapid pace, and corporations need to realize

that they better tread carefully when it comes to recognizing, tracking and

monitoring us.”

495

Google is currently facing a similar lawsuit in the U.S. District Court

for the Northern District of California. The complaint alleges that Google

violated BIPA by collecting biometric identifiers through its photo-

sharing cloud service without written consent from users.

496

Specifically,

the complaint states that Google used FRT to create face templates and

that “each face template that Google extracts is unique to a particular

individual, in the same way that a fingerprint or voiceprint uniquely

identifies one and only one person.”

497

The suit seeks $5,000 for each

BIPA violation and an injunction to stop Google from continuing this

practice.

498

490

. Id. at 1273.

491

. Id.

492

. Id. at 1275.

493

. Nathan Freed Wessler, A Federal Court Sounds the Alarm of the Privacy Harms of Face

Recognition Technology, ACLU (Aug. 9, 2019), https://www.aclu.org/blog/privacy-

technology/surveillance-technologies/federal-court-sounds-alarm-privacy-harms-face.

494

. Thomas Germain, Facebook Settles $550 Million Facial Recognition Lawsuit, CONSUMER

REP. (Jan. 30, 2020), https://www.consumerreports.org/lawsuits-settlements/facebook-settles-

facial-recognition-lawsuit/.

495

. Id. at *3.

496

. Ross Todd, Google Hit with Class Action under Illinois Biometric Privacy Law over Facial

Recognition, LAW.COM (Feb. 7, 2020), https://www.law.com/therecorder/2020/02/07/google-hit-

with-class-action-under-illinois-biometric-privacy-law-over-facial-recognition/.

497

. Lauren Berg, Google Accused of Collecting User ‘Face Prints’ from Photos, LAW360 (Feb. 7,

2020, 5:14PM), https://www.law360.com/articles/1241866/google-accused-of-collecting-user-

face-prints-from-photos.

498

. Id.

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80 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

5. Court Cases involving FRT in Other Countries

The struggle over the use of FRT is not limited to the United States. A

British court recently found that the use of FRT by police is lawful,

thwarting the efforts to limit FRT by an activist concerned about the

tool’s implications for privacy.

499

The opinion was decided while a

worldwide debate concerning the growing use of FRT was taking

place.

500

Advances in artificial intelligence have made it simpler for law

enforcement to automatically scan faces and promptly match those

images to "watch lists" of suspects, missing people and those of interest,

but the technology also presents apprehension about mass surveillance.

501

The Plaintiff in the British case claimed that the police scanned his face

twice as it assessed the technology. The first instance occurred while he

was Christmas shopping and the second when he was at a protest.

502

The

plaintiff asserted that “[t]his sinister technology undermines our privacy

and I will continue to fight against its unlawful use to ensure our rights

are protected and we are free from disproportionate government

surveillance."

503

The court disagreed, stating that the use of facial

recognition technology by the police was consistent with British human

rights and data privacy laws because the images and biometric data of

those who were not a match on the "watch list" were promptly deleted.

504

The court did note, however, that its legal analysis should be periodically

reviewed.

505

In Canada, the Ontario Court of Justice considered a case involving

facial recognition technology in R. v. Voong.

506

The defendant was

arrested after FRT identified him as having seven fraudulent driver’s

licenses in the Ministry of Transport database.

507

In the past, three of these

license cardholders had failed to appear in court for traffic violations so

the Crown had charged Mr. Voong for possession of fraudulent driver’s

license possession under the Canadian Highway Traffic Act.

508

The

defendant asserted that the evidence was obtained through an

499

. Kelvin Chan, Activist Loses UK Court Case on Police Fascial Recognition, ASSOCIATED

PRESS (Sept. 4, 2019), https://abcnews.go.com/Technology/wireStory/activist-loses-uk-court-case-

police-facial-recognition-65378750.

500

. Id.

501

. Id.

502

. Id.

503

. Id.

504

. Id.

505

. Id.

506

. R. v. Voong, 2018 ONCJ 352 (Can.).

507

. Ali Imrie, Ontario Court of Justice: Facial Recognition Technology of Driver’s License

Photos Not a Privacy Violation, RIGHTS WATCH BLOG, CANADIAN CIVIL LIBERTIES ASS’N (Feb. 6,

2018), http://rightswatch.ca/2018/06/02/18391/.

508

. Id.

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unreasonable search according to the Canadian Charter of Rights and

Freedoms.

509

The Ontario Court of Justice disagreed and noted that the Charter did

not apply to pictures and materials provided with the driver’s license

application since there were no relevant privacy considerations.

510

The

Ministry of Transport has the authority to disclose information in its files

to other agencies. Therefore, the defendant has no reasonable expectation

of privacy and his rights were not violated.

511

One Russian court has rejected a claim to ban FRT.

512

A woman, Alena

Popova, was involved in a sexual harassment protest in Moscow in 2018.

Subsequently, she was fined for protesting after being identified through

FRT.

513

This government action prompted her to sue the Moscow police

claiming that they were “indiscriminately” collecting biometric

information through facial recognition software without consent.

514

The

court dismissed the claim. The police maintained that Popova had no

proof that FRT was used to identify her.

515

It should be noted that this

case comes at a time that Moscow is planning to expand its use of FRT as

its mounts 160,000 cameras around the city, making it one of the largest

users of FRT in the world.

516

This move has prompted objections by

several organizations. For instance, Amnesty International has criticized

the plan to expand the utilization of facial-recognition systems, saying

their anticipated use in Moscow during public assemblies will “inevitably

have a chilling effect” on protesters.

517

Chinese courts were asked to address FRT use for the first time just last

year. A Chinese law professor sued a wildlife park after being required to

scan his face to enter the park.

518

The law professor was an annual pass-

holder who learned that the park had replaced its fingerprint identification

system with a facial recognition system.

519

Annual pass-holders who

509

. Id.

510

. Id.

511

. Id.

512

. Emily Sherwin & Elena Barysheva, Russian Court Rejects Call to Ban Facial Recognition

Technology, DW(June 1, 2019), https://www.dw.com/en/russian-court-rejects-call-to-ban-facial-

recognition-technology/a-51135814.

513

. Id.

514

. Id.

515

. Id.

516

. Id.

517

. Watchdog Warns About ‘Chilling Effect’ of Russia’s Use of Facial-Recognition Technology,

RADIO FREE EUROPE RADIO LIBERTY (Jan. 31, 2020), https://www.rferl.org/a/watchdog-warns-

about-chilling-effect-of-russia-s-use-of-facial-recognition-technology/30410014.html.

518

. Shan Li, Chinese Professor Files Rare Lawsuit Over Use of Facial-Recognition Technology,

WALL ST. J. (Nov. 4, 2019, 12:27 PM), https://www.wsj.com/articles/chinese-professor-files-rare-

lawsuit-over-use-of-facial-recognition-technology-11572884626.

519

. Id.

University of Cincinnati Law Review, Vol. 89, Iss. 1 [2020], Art. 2

https://scholarship.law.uc.edu/uclr/vol89/iss1/2

82 UNIVERSITY OF CINCINNATI LAW REVIEW [VOL. 89

refused to undergo a facial scan were not allowed into the park and were

not reimbursed for the value of their membership.

520

According to the

lawsuit, this violated China’s consumer protection law since it forced

customers to provide biometric information without their consent.

521

Although the law professor is seeking a refund for his membership, he

claims to have filed the lawsuit primarily to “raise awareness about the

problems that come from the unregulated collection of personal data and

to call for increased regulation and compliance.”

522

China does not have laws regulating the collection, storage, and use of

information gathered through FRT despite being one of the biggest users

of this technology.

523

The Chinese government is known to support

companies that develop FRT to bolster commerce and ensure public

safety.

524

FRT is widely used in Chinese airports, railway stations, offices,

campuses and residential buildings.

525

China also uses the technology to

arrest jaywalkers and those who commit other summary offenses.

526

Although there was a “public willingness to surrender some privacy in

exchange for the safety and convenience,” concerns have risen after it was

reported that facial data was being sold online for as little as $1.40.

527

new law requiring phone service providers to scan the faces of new

customers has also led some to speculate that the government is using

FRT to keep track of its population.

528

Many are now calling for a ban on

FRT use, and the outcome of this lawsuit could lead the government to

devise laws that regulate how private companies and law enforcement use

the technology.

529

V. CONCLUSION

This article aims to show the extent to which law enforcement relies

upon recent developments in camera surveillance, automated license plate

readers, drones, and facial recognition systems to carry out its duties.

520

. Id.

521

. Id.

522

. Id.

523

. China Facial Recognition Case Puts Big Brother on Trial, HONG KING FREE PRESS (Jan 12,

2020), https://www.hongkongfp.com/2020/01/12/china-facial-recognition-case-puts-big-brother-

trial/.

524

. Id.

525

. A Lawsuit Against face-scan in China Could Have Big Consequences, ECONOMIST (Nov. 9,

2019), https://www.economist.com/china/2019/11/09/a-lawsuit-against-face-scans-in-china-could-

have-big-consequences.

526

. Martin, supra note 299.

527

. China Facial Recognition Case Puts Big Brother on Trial, supra note 524.

528

. Sam Shead, Chinese Residents Worry About the Rise of Facial Recognition, BBC (Dec. 5,

2019), https://www.bbc.com/news/technology-50674909.

529

. Li, supra note 519.

Hodge: Big Brother is Watching

Published by University of Cincinnati College of Law Scholarship and Publications, 2020

2020] BIG BROTHER IS WATCHING 83

Unfortunately, laws regulating these various forms of technology have

not been able to keep pace with developments, and law enforcement has

been able to utilize digital advances with few restrictions. Although this

technology offers a vast array of benefits, it is important to be mindful

that these digital developments may infringe on the Constitutional rights

of citizens. Some state legislatures and lower courts have taken steps to

safeguard or minimize this intrusion, but the degree to which the civil

liberties of citizens are protected should not depend upon the state in

which they live. Rather than waiting for the Supreme Court to resolve the

various constitutional issues raised by this new technology, Congress

should enact legislation that ensures the use of these digital advancements

is limited, transparent, and accurate. These systems are only going to

become more sophisticated over time and the government will be able to

monitor the minute-by-minute movements of its citizens with relative

ease. Therefore, safeguards need to be implemented so that members of

society do not feel like Big Brother is watching at every corner and turn.

University of Cincinnati Law Review, Vol. 89, Iss. 1 [2020], Art. 2

https://scholarship.law.uc.edu/uclr/vol89/iss1/2