Face the Facts

Facial recognition technology?s troubled past -- and troubling future.

From the October 2002 issue

(Page 3 of 3)

Even before 9/11, many local law enforcement agencies considered political surveillance to be one of their official functions. For example, last spring it came to light that the Denver Police Intelligence Unit has for years kept surveillance files on government protesters, including about 3,000 individuals and 200 organizations. Among those targeted for police spying were the American Friends Service Committee (a Quaker group), Amnesty International, and Copwatch (a group that protests police brutality). The surveillance program was supposedly scaled back (though not eliminated), but only after secret documents were brought to public attention by the Colorado Civil Liberties Union.

Telling Colorado cops that they must have "reasonable suspicion" before accessing the faceprint database sounds good, but law enforcement will easily find ways around such restrictions. The Denver police surveillance guidelines have always required criminal suspicion, so the police simply listed as extremists the groups they wanted to spy on.

Indeed, the main constraint on the Denver Police Department?s political spying program was manpower. There are only so many people a police unit can spy on at once. But with FRT, political surveillance may one day escape such limits. Consider a mobile monitoring unit equipped with a face scanning camera, face recognition software, and the state?s driver?s license faceprint database. It would be a simple matter to compile a list of everyone who attends a rally to protest police brutality, to denounce drug laws, or to oppose U.S. foreign policy.

Nor will the technology necessarily be confined to use at political protests. In July 2001, the conservative U.S. House Majority Leader Dick Armey (R-Texas) joined with the ACLU to warn: "Used in conjunction with facial recognition software...the Colorado database could allow the public movements of every citizen in the state to be identified, tracked, recorded and stored."

Sound far-fetched? On September 20, 2001, Joseph Atick, CEO of Visionics, told a Department of Transportation airport security committee that FaceIt, in conjunction with security cameras, could be linked via the Internet to a federal monitoring station and alert officials to a match within seconds. He added that virtually any camera, anywhere, could be linked to the system, as could a "wide network of databases."

Opponents of FRT should not count on much help from the courts. Standard legal doctrine holds that there is little or no expectation of privacy in public. There is nothing unconstitutional, for example, about a police officer?s sitting on a bench at a shopping mall and making notes about the people who pass by. FRT advocates can argue that massive surveillance is simply like having 10 -- or 100 -- police officers in the mall, and that the quantitative difference is of no constitutional significance.

Yet even if we acknowledge that electronic government eyes are no different than a cop on every corner, do we really want that? One of the conclusions of Jeffrey Rosen?s New York Times Magazine piece on spy cameras in Great Britain was that the cameras are designed not to produce arrests but to make people feel they are being watched all the time. "The people behind [the cameras] are zooming in on unconventional behavior in public that has nothing to do with terrorism," Rosen wrote. "And rather than thwarting serious crime, the cameras are being used to enforce social conformity in ways that Americans may prefer to avoid."

There is some reason for hope, however. In the past, U.S. courts have acknowledged that technological change can make a constitutional difference. Under 19th-century constitutional doctrine, there was no need for the police to get a warrant before eavesdropping. If a policeman stood on public property and could hear a conversation going on inside a house, he did not need a search warrant. That doctrine made sense in the 1800s; if you talk so loudly that people on the sidewalk can hear you, you don?t have a legitimate expectation of privacy for your words.

But in the 1967 case Katz v. United States, the Supreme Court considered the issue raised by police officers who, without trespassing on private property, used parabolic microphones or wiretaps to listen in on conversations. Justice Hugo Black said this kind of surveillance was permissible because the new technology was simply an updated version of eavesdropping. The majority of the Court, however, ruled that wiretaps and other electronic surveillance should be permitted only if the police obtained a search warrant. The intrusiveness of electronic surveillance, its great potential for abuse, and its infringement on traditional expectations of privacy all distinguished it from old-fashioned eavesdropping.

Similarly, widespread face scanning could eventually make it possible for the government to track the movement of most citizens most of the time. It would expand the government?s tracking capability by several orders of magnitude -- as great an increase as the one from human ears to parabolic microphones.

Like the Fourth Amendment itself, Katz relies on a subjective judgment of reasonableness. Thus, there is no guarantee that Katz would stand as a barrier to omnipresent British-style face scanning; nor would Katz necessarily forbid placing information about every person?s movements in a permanent government database.

Ultimately, the future of face scanning will depend on the political process. There is almost no chance that the American public or their elected officials would vote in favor of tracking everyone all the time. Yet face scanning is typically introduced and then expanded by administrative fiat, without specific legislative permission.

So there is a strong possibility that future Americans will be surprised to learn from history books that in the first centuries of American independence citizens took for granted that the government did not and could not monitor all of their movements and activities in public places.

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Sabrina Cline|5.11.11 @ 5:17AM|#

It's frightening to think that we can be detained for something because a camera 'identified' us, and even more disturbing that we could be treated as criminals without any evidence being presented against us! Is a 47% success rate good enough to justify implementing this system?

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