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.

Aggregation Episode 3: Revenge of Mosaic Theory

A long time ago, in a courtroom far, far away . . . The DC Circuit was locked in an epic struggle between privacy and advancing technology, where GPS tracking looked to spell the doom of civil liberties neith the mighty tred of   . . . alright I’ll stop the Star Wars roleplaying. The Mosaic Theory is back in the news again, with the Fourth Circuit’s decision in United States v. Graham resurrecting that presumed dead interpretation of the Fourth Amendment, and I want to talk about it. The ruling involves cellphone cell-site data, (the stuff they talked about in Serial), but really implicates location data generally, and has commentators wondering if the Supreme Court will take a second look at how it treats location data under the Fourth Amendment. Continue reading