The Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions

I INTRODUCTION On July 3, 2001, the Tampa, Florida, Police Department began using FaceIt, a video surveillance system based on face-recognition software, in Ybor City, a downtown nightilfe district. (1) Three dozen security cameras scanned crowds while the software, using complex mathematical formulas to represent facial features, searched for database matches to the faces of wanted criminals. (2) When no match was found, the scanned image was deleted, a precaution voluntarily undertaken by the system's owner, Visionics Corporation of Jersey City, New Jersey, but not required by law. (3) If a match was found, however, a systems operator would then determine whether there was enough of a match to notify a uniformed officer to investigate .and possibly make an arrest. (4) Signs in the area warned passersby, "Smart CCTV in use," though most interviewed for a news story on the system did not know what the message meant. (5) Meanwhile, the Pentagon is funding a fifty-million dollar initiative to use face-recognition technology a s a means for combating terrorism.6 Informal interviews revealed widely diverging views of the technology among Tampa's citizenry. Many saw it as an invasion of privacy reminiscent of George Orwell's 1984, which predicted a totalitarian future based on constant, state-initiated surveillance of its subjects. (7) Police and local political officials argued that the system promotes safety, but privacy advocates objected to the city's recording or utilizing facial images without the victims' consent, (8) some staging protests against the FaceIt system. (9) Privacy objections seem to be far more widely shared than this small protest might suggest. The objectors cover the entire political spectrum. House Majority Leader Richard Armey, for example, in asking for a report on federal surveillance spending, had this to say about the subject: The most serious threats to our freedom often advance in small steps. Face recognition systems may one day provide significant benefits in military applications....We are taking a step in the wrong direction if we allow this powerful technology to be 10 turned against citizens who have done no wrong. (10) The American Civil Liberties Union has joined Armey's call for caution, describing the FaceIt system as subjecting the public to a "digital lineup." (11) Others worry that FaceIt and similar systems will be used by government agencies to track and catalogue the movements of innocent citizens, possibly for political reasons. (12) Little, if any, legislation protects against these dangers, yet it is unlikely that the Fourth Amendment to the United States Constitution does either. The wisdom of implementing the system has not yet been subjected to serious democratic deliberation. (13) The FaceIt system represents the tip of the iceberg in the growing potential use of surveillance technologies, including "ray-gun distance frisks," (14) mandatory, nationwide DNA databases covering all United States residents, (15) long-distance, hard-to-detect cyber-searches, (16) retinal scanning, (17) and radioactive "tag" alerts. (18) This list sounds like far-fetched science fiction, but all of these technologies are either available now or are currently being developed, and many advocates of public safety and more effective law enforcement--especially in an era of rising dangers from terrorism--favor broad implementation. (19) The advance of technology has spread so far and so fast that now even federal judges face routine mass-monitoring by the state. In March 2001, the judges of the Ninth Circuit Court of Appeals learned that their computers had been monitored by the Administrative Office of the United States Courts ("AO"). (20) The AO's goal had been to discourage activities unrelated to the judiciary's work, like listening to music or surfing the web for pornography. …