Facial recognition software raises issue of privacy rights in criminal process, P.2

Last time, we began looking at the problem of privacy with respect to Maryland law enforcement authorities’ use of facial recognition software. As we mentioned, officers are not required to obtain a warrant to run a search, which means that individuals can be subjected to such searches quite readily, and also that it is relatively easy to abuse the technology.

This issue was recently highlighted by the release of documents showing that facial recognition technology was used to monitor protesters during last year’s riots in Baltimore. The documentation, which was released by the California chapter of the American Civil Liberties Union, was thereafter followed by other evidence that Baltimore law enforcement routinely make use of other invasive technologies to monitor criminal suspects. All of this, of course, raises privacy concerns.

In criminal defense, privacy is an important issue relating to the Fourth Amendment, which deals with searches and seizures. Law enforcement is, under the Fourth Amendment, generally required to obtain a search warrant before conducting a “search.” Exactly what constitutes a search within the meaning of the Fourth Amendment is an important point, and one which has previously been appealed to the Supreme Court when dealing with emerging law enforcement technologies such as thermal imaging, radar devices and so on.

Once a given use of a given technology in law enforcement is determined to be a search, the legal requirement is that officers obtain a warrant before deploying the technology, at least in most cases. There are certain exceptions.

It remains to be seen whether the unwarranted use of facial recognition software will be challenged in the courts. For now, though, some legislative recommendations have at least been made in order to limit its use and to curb potential abuses. We’ll look at this topic in our next post.