'Anonymity, Faceprints, and the Constitution' by Kimberly N. Brown (2014) 21(2)
George Mason Law Review 409-466
comments that
Rapid technological advancement has dramatically expanded the war- rantless powers of government to obtain information about individual citizens directly from the private domain. Biometrics technology — such as voice recognition, hand measurement, iris and retinal imaging, and facial recognition technology (“FRT”) — offers enormous potential for law en- forcement and national security. But it comes at a cost. Although much of the American public is complacent with government monitoring for security reasons, people also expect to go about daily life in relative obscurity — unidentifiable to others they do not already know, do not care to know, or are not required to know — so long as they abide by the law. The reality is quite different. The government and the private sector have the capacity for surveillance of nearly everyone in America. As one commentator puts it, “soon there really will be nowhere to run and nowhere to hide, short of living in a cave, far removed from technology.”
FRT is a major contributor to the spectre of an Orwellian society.Facebook uses it to identify “friends” from uploaded photos, which are permanently affixed in cyberspace and accessible to the government. Federal and state authorities have their own databases of images collected from drivers’ licenses, public surveillance cameras, unmanned aerial drones, and tiny recording devices attached to police uniforms. Currently, the FBI is working on a $1 billion effort to expand its fingerprint identification system to crossreference FRT and other biometric data against a vast data repository that includes some 13 million criminal mug shot photos. With FRT, a federal agent or corporate marketer can convert any number of these facial images into algorithms, associate them with countless other bits of personal data accumulating throughout the global information network, and track the most intimate details of an unsuspecting person’s daily life.
There is no recognized constitutional theory for placing boundaries on the government’s ability to engage in ubiquitous monitoring of citizens based on images snapped in public or posted online. The Supreme Court has made clear that the Fourth Amendment does not protect “[w]hat a person knowingly exposes to the public.” Nor does it cover information re- vealed to third parties. Thus, although corporations and individual citizens generate the largest storehouses of personal data today, the government — through its subpoena powers, contractual agreements, and public access to online data—can effectively bootstrap private information into its own domain without contending with the Constitution.
As a consequence, technology has minimized the Constitution’s importance as a mechanism for protecting against arbitrary government tracking of one’s movements, habits, relationships, interests, and thoughts. This Article attempts to reassert the Constitution’s relevance when it comes to surveillance through FRT and related technologies in two ways. First, it argues for recognition of anonymity as a constitutional value that is both implicit in the Court’s Fourth Amendment jurisprudence and explicit in its First Amendment jurisprudence. Second, it suggests that a shift in technology’s intersection with data — from analysis of static bits of information in the pre-digital age to a “growing respect for correlations” among data in the digital age—warrants a fresh look at Fourth Amendment doctrine that excuses surveillance based on information obtained in public or from third parties. FRT allows users to correlate numerical faceprint algorithms with other data points to create new information relating to an individual’s past, present, and future life.Constitutional law must account for this modern capacity to manipulate data for predictive intelligence. To this end, the Article derives doctrinal guidelines for grappling with technology’s threat to the constitutional value of anonymity from a reconciliation of the Fourth and First Amendment law bearing on the issue.
Part I defines anonymity and explains that respect for the capacity to remain physically and psychologically unknown to the government traces back to the Founding. With the advent and expansion of new technologies such as facial recognition technology (“FRT”), the ability to remain anonymous has eroded, leading to a litany of possible harms.
Part II reviews the existing Fourth and First Amendment doctrine that is available to stave off ubiquitous government surveillance and identifies anonymity as a constitutional value that warrants more explicit doctrinal protection. Although the Fourth Amendment has been construed to excise surveillance of public and third-party information from its scope, the Court’s recent jurisprudence indicates a growing recognition that constitutional doctrine is out of step with modern surveillance technologies. The Supreme Court has expressly recognized a First Amendment right to anonymous speech, which should be taken into account in assessing the constitutionality of government surveillance systems under the Fourth Amendment. This Part accordingly draws a distinction between cases that arose in the pre-digital age, in which content was often collected through physical trespass or eavesdropping, and those arising in the digital age, in which correlations among disparate points of “big data” are used to make predictions.
Part III argues that Fourth and First Amendment doctrine should be reconciled to address the manipulation — versus acquisition — of FRT data to derive new information about individuals which is exceedingly intimate and otherwise out of the government’s reach. This Part suggests that this qualitative shift in information gathering is constitutionally significant under existing doctrine. Part III also offers guidelines gleaned from the intersection of First and Fourth Amendment jurisprudence for consideration by lower courts and legislators as they address the threat of limitless surveillance which big data and new technologies present.
