GateHouse: Facial recognition technology and the expectation of privacy

Matthew T. Mangino

GateHouse Media

July 27, 2018

Facebook recently rolled out facial recognition tools in Europe promoted as a way to help users safeguard their online identities.

It’s a risky move. Amazon shareholders recently expressed reservations over the company’s sale of facial recognition software to police departments.

A letter from shareholders warned Amazon CEO Jeff Bezos about the potential abuses of the facial recognition technology. The letter suggested that the software “may be intended to enhance some law enforcement activities, we are deeply concerned it may ultimately violate civil and human rights.”

Just this month Microsoft President Brad Smith wrote, “We believe Congress should create a bipartisan expert commission to assess the best way to regulate the use of facial recognition technology in the United States.”

“Facial recognition technology raises issues that go to the heart of fundamental human rights protections like privacy and freedom of expression,” Smith wrote.

A sophisticated computer software, facial recognition is capable of identifying a person by comparing and analyzing patterns based on the person’s facial contours. Facial recognition was originally used for security purposes, like entering a building or logging on to a computer. However, facial recognition technology has received significant attention from law enforcement agencies as a tool for surveillance, supervision and tracking down fugitives.

What is the big deal? The U.S. Constitution doesn’t provide much protection against facial recognition, Jane Bambauer, a law professor at the University of Arizona, told Wired.

Surveillance tools, like GPS, wiretaps, cellphones are covered by the Fourth Amendment protections against search and seizure. The courts and policymakers have established guidelines for things like lineups or photo arrays.

However, there is no protection for imagery, gathered lawfully, like photographs posted online, mug shots or even driver’s license photos.

Clare Garvie of the Georgetown Law’s Center on Privacy & Technology writes that most people would be outraged if they were asked to identify themselves at a public gathering. In this country, a police officer needs to have reasonable suspicion of a crime before stopping someone on the street and asking questions.

Yet it happens every day with facial recognition surveillance. Garvie writes that every man, woman and child passing by a government-installed camera is scanned — despite no prior suspicion of wrongdoing. “Their faces are nonetheless compared against the profiles of criminals and other people wanted by the police. It enables a world where people are tracked from camera to camera throughout a city — simply because they chose to get a driver’s license.”

What is happening in China would make George Orwell blush. No other country in the world has more video surveillance. China has 170 million closed circuit television cameras and 400 million new ones being installed.

In the near future, its citizens, and those who travel there, will be exposed to a vast and integrated network of facial recognition systems monitoring everything from the use of public transportation, to speeding, to how school children behave in public school, reported The Conversation.

And what happens if facial recognition technology gets it wrong?

Facial recognition technology advances by the day, but problems with accuracy and misidentifications persist, especially when the systems must contend with poor-quality images — such as from surveillance cameras, reported the Washington Post.

The police in the UK’s South Wales rolled out crime fighting facial recognition technology. After 10 months the police declared success according to Inc. Magazine. The technology was wrong 93 percent of the time. A Freedom of Information Act request revealed that there were 173 positive identifications and 2,297 misidentifications.
The pervasive use of facial recognition technology by law enforcement creates serious privacy concerns. Some will say that facial recognition technology does no more than observe our day-to-day movements in public, the same way any individual can observe the movement of others.

Others will argue that private citizens should not be subject to a “search” comparing their face to a vast pool of data every time they leave their homes.

Ultimately the courts must decide this fundamental question: Does a reasonable expectation of privacy under the Fourth Amendment preclude the government from capturing law abiding citizens’ faces and identifying them without their knowledge or consent?

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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