By Hannah Ceriani
In 2019, journalist Kashmir Hill wrote a New York Times article about a company that was quietly aiding in privacy violations.[1] The company Clearview AI has developed a facial recognition app, which is essentially a database of billions of images copied from millions of websites like Facebook, YouTube, and Venmo.[2]
The app can potentially identify anyone since the “computer code underlying [the] app…includes programming language to pair it with augmented-reality glasses.”[3] A person could be anywhere in public doing anything, and the app could reveal that person’s name, home address, career, and any other information that is out there on the Internet.[4]
Six hundred police departments were using the app less than three years after it was released to help solve various types of crimes, including murders and kidnappings.[5] Those law enforcement agencies have since copied 10 billion photographs.[6] They have done so without consent from the individuals who uploaded the photos, without authorization from the companies behind the websites where the photos were originally uploaded, and without the knowledge of the general public.[7]
Obviously, the use of facial recognition technology could quickly become a major violation of First and and Fourth Amendment rights. When used in public, this technology has a high likelihood of halting unabridged free speech and peaceful assembly because it could be seen as a form of surveillance.[8] Viewing facial recognition technology in this light, it is plausible that people will begin to alter their behavior because of the feeling that they are always being watched, particularly by law enforcement.[9]
The Supreme Court addressed Fourth Amendment privacy issues in the case Carpenter v. States.[10] Chief Justice Roberts noted that the ability of police to “secretly monitor and catalogue every single movement” of a person is unconstitutional and violates what society perceives law enforcement’s job to be.[11] The Court suggested that a person’s “privacies of life” should be protected.[12] The Court considered those privacies to include an individual’s “familial, political, professional, religious, and sexual associations,” which could be determined by using such technology.[13]
Large tech companies like Google and IBM have refrained from using similar technology in response to such concerns.[14] Only ten states have taken any sort of action to regulate the use of facial recognition by law enforcement.[15] Some cities, like Detroit, Chicago, and San Francisco have also enacted their own regulations and legislative bans.[16]
However, these statutes and regulations are not doing enough. There are two main issues: loopholes in the current legislation and regulation, and the lack of uniformity to address the violation of Constitutional rights. The most pressing concern with facial recognition technology is the lack of restrictions by the federal government.[17] In fact, many tech companies have advocated for federal regulation of this technology, but Congress has yet to pass any laws regulating police use of facial recognition.[18]
[1] Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times (Jan. 18, 2020) https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.
[2] Id.
[3] Id.
[4] Id.
[5] Amanda Levendowski, Resisting Face Surveillance with Copyright Law, 100 N.C.L. (forthcoming 2022) (manuscript at 3).
[6] Id.
[7] Id.
[8] Clare Garvie & Laura M. Moy, America Under Watch: Face Surveillance in the United States, Geo. L. Ctr. for Priv. & Tech. (May 16, 2019), https://www.americaunderwatch.com/.
[9] See id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Hill, supra note 1.
[15] Levendowski, supra note 5 (manuscript at 24).
[16] Id. (manuscript at 20).
[17] See Garvie, supra note 8.
[18] Lauren Feiner & Annie Palmer, Rules Around Facial Recognition and Policing Remain Blurry, CNBC (June 12, 2021, 9:30 AM), https://www.cnbc.com/2021/06/12/a-year-later-tech-companies-calls-to-regulate-facial-recognition-met-with-little-progress.html.
Image Source: https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html