Othello Error: Facial Profiling, Privacy and the Suppression of Dissent

51 Pages Posted: 4 Feb 2010 Last revised: 10 Oct 2013

Lenese C. Herbert

Albany Law School; Howard University School of Law

Date Written: 2007

Abstract

In this article, Professor Herbert challenges the US. Transportation Security Administration's post-September 11, 2001, use of Paul Elanan and Wallace Friesen's Facial Action Coding System (FACS) to identify potential terrorists in American airports. Professor Herbert asserts that invasive visual examination of travelers' faces and facial expressions for law enforcement purposes under the auspices of protective administrative searches ineffectively protects national and airport security and violates reasonable expectations of privacy. FACS improperly provides unreasonable governmental activity with a legitimizing scientific imprimatur that conceals governmental agents' race- and ethnicity-based prejudices, which leads to targeting minorities' faces as portents of danger. Professor Herbert assesses the concept of facial privacy in public, and in doing so, rejects the Supreme Court's Katz v. United States test and argues in support of constitutional protection of public privacy.

Keywords: FACS, Identify Potential Terrorists in American Airports

Suggested Citation

Herbert, Lenese C., Othello Error: Facial Profiling, Privacy and the Suppression of Dissent (2007). Ohio State Journal of Criminal Law, Vol. 5, pp. 79-129, 2007. Available at SSRN: https://ssrn.com/abstract=1547194

Lenese C. Herbert (Contact Author)

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

Howard University School of Law ( email )

2900 Van Ness Street, N.W.
Washington, DC 20008
United States

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