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Document Type

Note

Abstract

Over the past several years, we have seen an increase in the adoption and use of facial recognition technology (FRT). Both private corporations and government organizations have increasingly used this technology over the past several years, and law enforcement agencies have been just as eager to utilize FRT in their operations. The potential uses for this technology in a law enforcement capacity are numerous. For example, FRT could be used to identify criminals whose faces were caught on surveillance footage, or it could be used to help identify citizens during border crossings. However, it is easy to imagine how an invasive use of this technology could potentially threaten several constitutional rights. There have been enough cases discussing inappropriate uses of biometric technologies, of which FRT is one, that it is only a matter of time before a case involving the technology is brought before the Supreme Court or until congressional legislation is passed that regulates its use. However, until that day comes, the invasive use of FRT by law enforcement exists in a sort of legal grey area on the federal level. As this is a relatively new technology, courts have not had the chance to rule on many cases concerning its use by law enforcement. With that in mind, the recent increase in the use of facial recognition technology by law enforcement agencies has resulted in a possible threat to rights guaranteed by the Constitution. Of course, it should be acknowledged that private actors also have access to FRT, and its use by those entities prompts several unique legal questions distinct from its use by law enforcement. Furthermore, legislation or court decisions that bind law enforcement officials’ use of FRT may not apply to private use. While this Note will mainly focus on the constitutional implications of FRT as used by law enforcement, private use of the technology will be addressed when it would be beneficial to the topic at hand.

Erratum

The editors recognize that the page numbers for this note need to be corrected. The preceding note by Disler ends on page 364; this note should be paginated as 365 through 388.

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