By Sebastian Anastasi
“The U.S. government has been enabled to massively increase its surveillance power without our knowledge. If we are to protect our liberty we must update our law to keep pace with our technology.”
Ever since the publication of 1984 by George Orwell, readers have been terrified by his vision of the surveillance state. While many Americans are aware of the government’s spying capacities enabled the under Patriot Act, few are aware of the expansive new powers of surveillance the government possesses because of the use of of Facial Recognition Technology (FRT). The use of facial recognition technology by law enforcement, notably the FBI, has resulted in one in two Americans having their photos searched. In short, the advent of increasingly powerful FRT technology has occasioned a massive increase in the power of the surveillance state that poses a threat to Americans’ constitutional rights.
Unprecedented Scope of FRT Use
The use of FRT technology is routine. The FBI alone has logged over 390,000 facial recognition searches from 2011 to 2019. Besides the FBI, another 19 federal agencies make use of facial recognition technology. These federal agencies are utilizing systems that include hundreds of millions, even billions, of photos. For example, the FBI makes use of state DMV records when carrying out facial recognition searches. By doing so, the FBI can search a database of photos of a vast swath of U.S. citizens even if they are perfectly law-abiding.
More agencies are making use of the facial recognition technology of non-government entities, such as Clearview AI and Vigilant Solutions. These databases do not include the same limitations or protections as government databases. Hence, access to this technology has further expanded agencies’ access to photos of millions of law-abiding Americans. Finally, it is also of particular concern that law enforcement is now beginning to implement real-time facial recognition technology surveillance. Just like something out of a movie, this will enable law enforcement to scan peoples’ faces on street surveillance cameras.
Lack of Meaningful Restraints
The mere existence of such surveillance capabilities would be concern enough, however, things are made worse by the utter lack of accountability in law enforcement’s use of FRT. No formal regulation of law enforcement’s use of FRT. In addition to being totally unregulated, no legislative approval has ever been given for government agencies to use facial recognition technology on photos of hundreds of millions of American citizens. Facial recognition is happening without consent or constraint. Things are further complicated by law enforcement agencies’ resistance to making information about FRT programs public, a problem that extends to the FBI itself.
Most law enforcement agencies do not log or audit the use of FRT systems. Additionally, many federal law enforcement agencies are not even aware of which non-federal facial recognition systems are used at their agency. The failure to track which systems are used makes it nearly impossible to evaluate the potential risks to privacy and accuracy. For example, there is the risk that some of these non-government systems could have their security compromised. Finally, all of the problems discussed so far have pertained to FRT use in general. The potential problems with real-time/live facial recognition are even more pronounced. While current searches are premeditated and deliberately programmed to target specific individuals, searches under a live-search paradigm are invisible and generalized. Such searches can happen to anyone, anytime, anywhere with little to no record being left behind.
Impact for Justice and Liberty
The potential impacts of the extensive government use of FRT under the current paradigm are massive. First, as it currently takes place, the government’s use of facial recognition technology violates the rights to privacy guaranteed in the fourth amendment. Specifically, the fourth amendment laid out that Americans’ privacy should not be violated except when the government has a warrant and probable cause. Consequently, biometric networks utilized by the FBI (like fingerprint and DNA databases) are traditionally comprised only of those with records of arrests or investigations. However, the facial recognition system utilized by the FBI draws on the state’s driver’s license photos and consequently includes, mainly, law-abiding citizens.
Second, there have been numerous studies that suggest FRT may be prone to delivering false positives when identifying suspects. One study found that a mere 19% of facial recognition matches were correct. Furthermore, real-time use of facial recognition is even less accurate than controlled searches of databases. Therefore, until FRT improves its accuracy it poses a threat to justice by potentially implicating innocent citizens.
In short, thanks to leaps in U.S. technology, the government has been enabled to massively increase its surveillance power without our knowledge. This expansion has happened without the passage of any legislative permission or regulatory protections and has the potential to impact many millions of law-abiding Americans. If we are to protect our liberty we must update our law to keep pace with our technology.
Sebastian Anastasi is a junior economics major with a math minor from Grove City, Pennsylvania. Sebastian was engaged in the political process from an early age, advocating for changes to local ordinances and participating in competitive speech and debate. On campus, he heads up the tutoring offered by the economics honorary, is co-captain of the Debate Society, and previously served as the student assistant to the provost.
Sebastian works as an Executive Editor for DFW Speech & Debate. He writes briefs and conducts research on key policy issues for DFWSD’s STOA Team Policy Sourcebook. DFWSD’s sourcebook is an academic resource utilized by over 500 high school debaters every year. Sebastian has served in similar capacities for other national sourcebooks, including serving as Project Manager for the Ethos Publications sourcebooks. Research topics have including banking, monetary policy, immigration, higher education, and international terrorism. After graduating Sebastian hopes to pursue a career in either the legal field or as a professor of economics.