The Legalities of Facial Recognition

Biometric identification. African-american woman scanning face with facial recognition system on smartphone

If you’ve ever watched shows like NCIS or other crime dramas, you’ve probably seen police and federal agencies using facial recognition software. Once thought of as within the realm of science fiction, facial recognition technology has now become “science fact”. Today’s newest laptops and smartphones are employing this technology to keep your devices secure. Now, even law enforcement agencies are using it.

Amazon CEO Jeff Bezos has been selling facial recognition software to police despite pleas to stop. Amazon says that the software can “identify persons of interest against a collection of millions of faces in real-time.”

What are the legal ramifications of using facial recognition technology? Are there any laws or regulations to govern this newest installment of crime-fighting software? As it turns out, there aren’t any at this time.

Microsoft president, Brad Smith, made a public appeal for the federal government to establish some regulations. Smith said that the technology that Microsoft sells is sophisticated. He has concerns that the misuse of the technology and the potential for errors could be catastrophic.

One major issue is that this facial recognition software has repeatedly underperformed in the recognition of African Americans. Critics fear that the use of this technology, which is often unregulated, may lead to the misidentification and arrest of innocent African American citizens. A study published by researchers from MIT and Microsoft found that its facial recognition system had an error rate of 21% in identifying women of color. Another vendor, whose name was not mentioned, failed 35% of the time.

The American Civil Liberties Union tested the accuracy of Amazon’s Recognition system. They tested to see if the system could recognize every member of Congress when tested against 25,000 photos of people who have been arrested. The system mis-recognized 28 members of Congress as people in the mugshot dataset. This equates to an error rate of about 5%.

This is a main concern of critics to this software. It is believed that these systems are not accurate enough to be used in criminal applications, but companies like Amazon are still aggressively marketing the technology to police departments.

Where Could This Be Challenged?


State and federal laws generally allow for police departments to search video or images collected from public cameras, but some people believe that facial recognition technology is a clear case of technology outpacing the law.

Beyond concerns that racial profiling may be a problem, there are also constitutional considerations. Some commentators believe that facial recognition technology has First Amendment implications. However, the Supreme Court ruled that absent direct danger or injury, surveillance does not violate the First Amendment.

Another constitutional concern is the Fourth Amendment, which prohibits unlawful search and seizure. The Court has yet to recognize a constitutional right to privacy in public. It may have to update its Fourth Amendment jurisprudence to reflect modern technology.

It may take some time for both state and federal laws to begin to address this technology. With both First and Fourth Amendment concerns, it may take the Supreme Court stepping in before the legalities of facial recognition technology can be firmly established.

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