Can Facial Recognition Technology Be Used To Fight the New War Against Terrorism?: Examining the Constitutionality of Facial Recognition Surveillance Systems

June 16, 2012

Because Americans live in one of the most technologically advanced societies, our lives have already been monitored and our freedoms constrained by highly intrusive means. Employers can legally monitor their employees’ e-mails, and automobile drivers can be issued traffic tickets with the use of video cameras attached to stoplights. This comment will focus on one of the most intrusive means that recent technological advancements will now allow to be imposed upon us in the name of combating crime and ensuring safety: facial recognition.
Facial recognition is part of a larger category of technologies called biometrics that uses biological information, such as iris scans and handprints, to confirm identity. The use of facial recognition software in conjunction with public video surveillance (“facial recognition surveillance”) is quickly emerging as a means of tracking down criminals and other wanted individuals. In light of the September 11th tragedy, inquiries into how this technology can be used to prevent future attacks of this kind are now being explored with great urgency. Countering these inquiries are concerns that this form of electronic surveillance may be so intrusive that it violates our constitutional rights.
This Comment sets out to explore the constitutionality of facial recognition surveillance in the context of the Fourth Amendment. The evolution of this type of electronic surveillance will be examined in Part II of this article. Part III of this article will concentrate on how this technology works and will focus on its use in the first United States city to implement such surveillance. Part IV will discuss this type of surveillance and possible Fourth Amendment implications. The use of facial recognition technology in response to a national security interest, such as that created by the September 11th tragedy, will also be discussed in Part IV. Part V will conclude the Comment with a discussion of possible safeguards that should be put in place for this technology to operate effectively, whether use of the technology is in fact constitutional or only warrants use in certain situations.