How to Save Face & the Fourth Amendment: Developing an Algorithmic Accountability Industry for Facial Recognition Technology in Law Enforcement

47 Pages Posted: 30 Apr 2022 Last revised: 15 Jan 2024

See all articles by Patrick K. Lin

Patrick K. Lin

Center for Art Law; Surveillance Technology Oversight Project; Eisenberg & Baum LLP

Date Written: October 28, 2021

Abstract

For more than two decades, police in the United States have used facial recognition to surveil civilians. Local police departments deploy facial recognition technology to identify protestors’ faces while federal law enforcement agencies quietly amass driver’s license and social media photos to build databases containing billions of faces. Yet, despite the widespread use of facial recognition in law enforcement, there are neither federal laws governing the deployment of this technology nor regulations setting standards with respect to its development. To make matters worse, the Fourth Amendment—intended to limit police power and enacted to protect against unreasonable searches—has struggled to rein in new surveillance technologies since its inception.

This Article examines the Supreme Court’s Fourth Amendment jurisprudence leading up to Carpenter v. United States and suggests that the Court is reinterpreting the amendment for the digital age. Still, the too-slow expansion of privacy protections raises challenging questions about racial bias, the legitimacy of police power, and ethical issues in artificial intelligence design. This Article proposes the development of an algorithmic auditing and accountability market that not only sets standards for AI development and limitations on governmental use of facial recognition but encourages collaboration between public interest technologists and regulators. Beyond the necessary changes to the technological and legal landscape, the current system of policing must also be reevaluated if hard-won civil liberties are to endure.

Keywords: Facial recognition, Fourth Amendment, criminal procedure, policing, technology, artificial intelligence, ethics, machine learning, police, race, bias, fairness, algorithm, civil liberties, constitutional law

JEL Classification: K14, K42, L32

Suggested Citation

Lin, Patrick K., How to Save Face & the Fourth Amendment: Developing an Algorithmic Accountability Industry for Facial Recognition Technology in Law Enforcement (October 28, 2021). 33 Albany Law Journal of Science & Technology 189 (2023), Available at SSRN: https://ssrn.com/abstract=4095525 or http://dx.doi.org/10.2139/ssrn.4095525

Patrick K. Lin (Contact Author)

Center for Art Law ( email )

195 Plymouth Street
Suite 616
Brooklyn, NY 11201
United States

Surveillance Technology Oversight Project ( email )

40 Rector Street
9th Floor
New York, NY 10006

Eisenberg & Baum LLP ( email )

New York, NY 10003

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