“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” When the founders designed the 4th Amendment, their intentions were clear. Privacy is a right for affluent, Christian, educated, property-owning, white men. Eventually, this Amendment became interpreted as a limitation on police power to seize and search all people and their property and a right to privacy for all citizens.
Modernization has led to the development of advanced technologies such as facial recognition, social media monitoring, gang databases, predictive policing, drones, DNA databases, body cameras, SkyWatch towers, and much more. Whether we choose to or not, we give up a significant amount of privacy to use technology like the internet by accepting cookies, storing data in web browsers, or granting social media platforms access to our photos, location, videos, and audio. The 4th Amendment has been tested for the last several years because the founders did not envision modern technologies, nor did they predict the structured policing system we have today. A vital component of the 4th Amendment is the exclusionary rule, which exists to avert police misconduct by excluding illegally obtained evidence from trials. Defendants are permitted to suppress the evidence brought against them in a pretrial. The exception to the exclusionary rule is the use of good faith, in which police who illegally obtained evidence may use that evidence in court despite its violation of the Constitution.
Corruption and unethical behavior from law enforcement is a prime example of James Madison’s argument, in Federalist 51, “If men were angels, no government would be necessary.” Police and intelligence agencies have acquired biometric data of individuals despite not having a criminal history. That is grounds for why the government is necessary, but also why oversight on the use of biometric technology is crucial. For example, in June of 2019, former New York Police Department Commissioner James O’Neil said “the utilization of facial recognition technology is part of an extensive procedure and is a limited and preliminary step when investigating a crime.” The police department will acquire video footage from areas surrounding the crime scene, dispatch the footage to be stored in a database, and process the video(s) for a potential match. If they claim to have identified a match, a possible next step would be, shifting attention to social media monitoring to verify and narrow the search. O’Neil proclaimed, “human oversight is a significant component of this process” and a match does not equate to a probable cause for arrest. O’Neil praised facial recognition technology stating it allowed the department to “reduce the probability of mistaken identity convictions.” Unfortunately, that is not true.
An inadequate framework of public policy presides over New York City’s biometric-fueled surveillance system. Programs such as facial recognition use artificial intelligence (A.I.) to match photos or camera footage gathered from arbitrary pedestrians. The NYPD’s official policy on the use of facial recognition indicates “officers may scan footage for faces if…they believe a crime has been committed or is about to be committed or if there is an imminent threat to health or public safety,” but privacy experts forewarn A.I. is susceptible to surveillance without a warrant. Due to the broad policy, any individual standing on the corner or participating in a protest can be identified as suspicious, clearing the room for abuse.
Given the use of these technologies, it’s evident that the 4th Amendment will play a prominent role in the struggle to regulate the use of biometric technologies and the data acquired. Significant challenges will include deciding how to apply the 4th Amendment to biometric technology, police power and transparency in acquiring and using data, and most importantly, because the government can do so much without constitutional oversight, on what grounds is it acceptable to search and seize utilizing biometrics?
Regarding the 4th Amendment, a crucial step toward regulation would set limits on what can be done with biometric data because it will ensure that civil liberties are not undermined. If New Yorkers’ care to stay up to date on the regulation of biometric data, the Surveillance Technology Oversight Project maintains a list of bills passed and in the process of analysis.
