The Wall Street Journal reports that law enforcement agencies across the nation will soon be using hand-held facial/iris/fingerprint recognition systems to identify individuals, which would raise civil liberties questions. To think about how this would affect your civil liberties, we need to consider your First Amendment right of free speech and Fourth Amendment right against unreasonable search and seizure.
Let’s check out the Journal story before we delve into the legal questions:
With the device, which attaches to an iPhone, an officer can snap a picture of a face from up to five feet away, or scan a person’s irises from up to six inches away, and do an immediate search to see if there is a match with a database of people with criminal records. The gadget also collects fingerprints.
Until recently, this type of portable technology has mostly been limited to military uses, for instance to identify possible insurgents in Iraq or Afghanistan.
The device isn’t yet in police hands, and the database isn’t yet complete. Still, the arrival of the new gadgets, made by BI2 Technologies of Plymouth, Mass., is yet another sign that futuristic facial-recognition technologies are becoming reality after a decade of false starts. […]
It is generally legal for anyone with a camera, including the police, to take pictures of people freely passing through a public space. (One exception: Some courts have limited video surveillance of political protests, saying it violates demonstrators’ First Amendment rights.) […]
BI2 says it has agreements with about 40 agencies to deliver roughly 1,000 of the devices, which cost $3,000 apiece. […]
BI2 says it urges officers to use it only when they have reasonable suspicion of criminal activity.
The story mentions that some courts have limited video surveillance of political protests because there is a question of freedom of speech. That is a significant question. Technology has made it more difficult for people to have the ability to protest anonymously without fear of identification, which could affect their employment or other relationships. It is illegal, but not unheard of, for an employer or school to punish an individual when he or she is identified exercising their First Amendment right to free speech.Â But just because it is possible to easily identify everyone in a huge protest crowd does not mean that we should, and some courts have said that it is illegal to do so.
These hand-held facial/iris/fingerprint recognition systems would make the identification of individuals much easier, as that person’s face/iris/fingerprint could be run against databases and matched. And before you say “well only criminals would be in this database,” recall how easily it could be to expand this photo database from “criminals” to “everyone with a driver’s license or state ID or passport, since we already have their photograph.” When you applied for your license, did you think that it would possibly opt you into a massive database searchable by a person a few feet from you on the street? Fingerprints are added to databases for a variety of reasons. I had to submit my fingerprints to obtain my law license. Family members, roommates and business colleagues of crime victims have submitted fingerprints in order to rule out “innocent” fingerprints at a crime scene in a home or workplace. And iris scans aren’t commonplace, but they are being used more widely. For example, some “trusted traveler” airport programs gather iris scans. Some companies use iris recognition technology for their security systems.
Next, let’s look at the question of “reasonable suspicion” of criminal activity. The reason that the company making the hand-held facial recognition devices is urging law enforcement officers to only use the device when they have “reasonable suspicion” of criminal activity is because of a 1968 U.S. Supreme Court decision,Â Terry v. Ohio, 392 U.S. 1.
In Terry, the US Supreme Court held that the Fourth Amendment â€œprotects people, not places,â€ so it includes physical search of a person on the street. However, in Terry, the US Supreme Court held that officers can stop and frisk and question a person if they have â€œreasonable suspicionâ€ (a lower standard than the â€œprobable causeâ€ requirement of the Fourth Amendment) of criminal activity; therefore a Terry stop does not violate the Fourth Amendmentâ€™s prohibition against unreasonable search and seizure.Â (A â€œfriskâ€ is a surface inspection or â€œpat downâ€ of a personâ€™s body in search of weapons that would endanger an officer; it is not a thorough physical examination.)
Forcing a person to undergo an iris scan would certainly be a search and seizure of the person’s body. It goes far beyond the frisk that is necessary to ensure the safety of the officer. It is unclear whether reasonable suspicion would be enough for police officers to legally use these devices. It is possible (and I hope most likely) that the courts would rule that a warrant — which requires “probable cause” — is necessary for such an intrusive search. (In case you don’t recall, here is the exact Fourth Amendment wording concerning warrants: “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”)
It is likely that once these devices are in wide use by law enforcement officials, there will be a lawsuit (or many) concerning the legality of their use and whether they violate individuals’ First or Fourth Amendment rights.