Face Recognition Technology

Last month, I had the opportunity to attend Northern Kentucky University’s 9th Annual Cybersecurity Symposium. One of the excellent speakers, Zachary S. Heck (IU Maurer Law grad, ’14, magna cum laude), provided a timely and enlightening presentation on “Biometrics: With Great Data Comes Greater Cybersecurity Responsibility.”  Zach is an attorney in the Dayton office of Faruki, Ireland, and Cox.  You can read more from Zach and his colleagues on his law firm’s blog.

Zach’s presentation was particularly timely because a few days before the conference, the Georgetown Law Center on Privacy & Technology issued a comprehensive report on law enforcement use of face recognition technology titled, The Perpetual Line-Up: Unregulated Police Face Recognition in America (Oct. 18, 2016).  The report includes the following conclusions.  First, in the context of law enforcement, the “benefits of face recognition are real” and this “report does not aim to stop” the use of this biometric technology.  Second, there is little, if any, regulation, transparency, or accountability of law enforcement use of face recognition databases; and, this must change to ensure the rights of individuals are not violated.  The report offers several recommendations, model face recognition legislation, and a model use policy that law enforcement agencies could adopt.

To be sure, the Georgetown report is not a solution in search of a problem.  In September 2016, the Associated Press published an article titled, “Across US, Police Officers Abuse Confidential Databases.” Also in September 2016, the Eighth Circuit Federal Court of Appeals noted that a Minnesota legislative auditor’s report found that “at least half of Minnesota’s law enforcement officers were misusing personal information in the [state’s motor vehicle registration] database.” Tichich v. City of Bloomington, 835 F.3d 856, 866 (8th Cir. 2016).

Finally, I had the pleasure of reconnecting with a great friend and former colleague at the NKU Cybersecurity conference, Joe Dehner. Joe is a Member in the Cincinnati office of Frost Brown Todd.  Joe’s has an exciting and useful podcast, called the “Data Privacy Detective.” You can listen to Episode 6 of the the Data Privacy Detective, which provides my brief thoughts on the Georgetown “Perpetual Line-Up” report, including possible First and Fourth Amendment concerns that the use of face recognition technology implicates.

Facebook Threats: What’s Not to Like

I finally got around to listening to the oral argument for the Supreme Court case Elonis v. United States, which attempts to determine when threatening language online can be proscribed under the First Amendment, and I’d like to talk about it. The case involves a man who wrote threatening rap lyrics on his Facebook page about killing his ex-wife. I always find First Amendment debates fascinating, and the application of old First Amendment law to modern technologies seems right up my alley.

At its core, the case is very simple. “True threats” are one of the categories of speech that are exceptions to the First Amendment, and therefore not subject to “strict scrutiny,” the highest legal standard. The question is two-fold: what mens rea requirement do we apply to true threats, and does communicating a threat through social media implicate the defendant’s mens rea? Continue reading

Gamergate and E-Harassment

I’ve wanted to talk about Gamergate for quite some time now. As a self-proclaimed casual gamer, seeing the ugly underbelly of the video game world exposed is both harrowing and eye opening, and necessarily provokes a lot of thoughts. For those who don’t know, Gamergate is a social media phenomenon (see also #gamergate) wherein a critique of video game journalism rapidly descended into a misogynistic free-for-all involving widespread harassment of female game designers and game critics. While discussions about sexism and misogyny in gaming did not originate with Gamergate, the extremity of the backlash in this instance does seem to be unique, and has led to numerous discussions about gamer culture, internet culture, and the host of problems they present. I don’t want to oversimplify what is inevitably a complicated issue, but it’s hard to deny that the reason #gamergate became such a big deal is because of its implications for gender politics. Continue reading

Snapchat, Sexting, and the “Selfie Exception”

As many of you probably heard, a major leak of Snapchat photos was posted online this past week (dubbed “the Snappening”), resulting in a fair amount of discussion reminiscent of the nude celebrity photo leak from this August. For the unaware, Snapchat is a popular texting app with the gimmick that anything you text will be deleted on the receiving device after viewing. The appeal is pretty obvious: you can send photos (or short video clips) without worrying about the photos being further distributed. Snapchat shows your friends the picture and then promptly deletes it; your privacy is protected. Continue reading