On Wednesday, March 14 FPF Senior Fellow Peter Swire gave a talk on “Facial Recognition by the Government: Privacy and Civil Liberties Issues.” The talk took place at the third installment in the U.S. Government Facial Recognition Legal Series. Wednesday’s forum was titled “Striking the Balance – A Government Approach to Facial Recognition Privacy and Civil Liberties.” The forum participants and speakers explored use cases for facial recognition across federal law enforcement and national security agencies, sought to deepen their understanding of the existing law and policy that governs facial recognition in these contexts, and identified gaps in legal/policy authority that may result in privacy and civil liberties vulnerabilities if left unaddressed The forums have been geared towards federal law enforcement and intelligence personnel.
Swire, a law professor at the Ohio State University, focused his presentation on the legal landscape surrounding privacy and facial recognition technology. To frame the discussion, he began by outlining two differing perspectives on facial recognition technology: 1) it has always been legal to observe people in public, and facial recognition technology is simply making this easier and 2) facial recognition technology allows an unprecedented ability to surveil and track people, and this information could be stored indefinitely and correlated with other personal information.
Next, he examined some of the constitutional issues surrounding facial recognition. Of particular importance in the facial recognition space is the fourth amendment. The fourth amendment requires warrants and probable cause for searches and prohibits unreasonable searches and seizures. Observing a person in public has traditionally not required a warrant. However, Professor Swire pointed out, the Supreme Court’s recent decision in U.S. vs. Jones may dramatically impact privacy by requiring law enforcement agents to obtain a warrant to conduct surveillance on suspects in public, something law enforcement has never had to do. However, the fourth amendment contains a consent exception; if an individual consents to a search, a warrant is not required. Professor Swire pointed out that some might argue that individuals consent to going outside or to other public places (i.e. a bank or mall) where security cameras are present.
Professor Swire also examined how several other laws might impact facial recognition technology. Some, including Justice Sotomayor, are worried that constant surveillance by the government could chill free speech and free association. Constant surveillance could also potentially lead to discrimination—while most Americans are familiar with the phrase “driving while black,” constant surveillance could lead to “walking while black.”
To finish his talk, Professor Swire advised the government attendees that not everything that is legal should be done. He recommended that law enforcement and intelligence agencies practice data minimization and conduct the New York Times test to determine whether or not a surveillance program is a good idea: if the program was detailed on the front page of the New York Times, would the public reaction be negative or positive?
Following Professor Swire’s talk, officials from government agencies including the FBI, OMB, DoD, and DHS presented on a range of topics including the impact of public perception on law and policy, biometrics privacy policies in different agencies, and gaps in facial recognition law and policy. The presenters and participants all agreed that they need to work hard to earn and maintain the public’s trust in their use of biometrics technology, including facial recognition services.
The presenters and government attendees showed a high degree of sensitivity to the privacy issues surrounding facial recognition technology. Additionally, they were aware that they are all in the same boat; as one government official put it, a big facial recognition privacy mishap by one government agency would tarnish legitimate facial recognition programs in every other agency. Conversely, any well-thought-out and run facial recognition program can help every agency build trust around facial recognition technology.
The meeting minutes for the forum can be found here.