Prof. Ira Rubinstein
Facial recognition Facebook app hoax terrifies the internet
March 14, 2017
Earlier this week, news circulated on the Internet that a new app, Facezam, was able to identify the identity of strangers in a photograph by using facial recognition technology (FRT). While the news turned out to be a hoax, such use of FRT is not at all far-fetched. In fact, the use of FRT in a crowd was tested as early as 2001, when the technology was deployed in an attempt to detect security risks at the Super Bowl, and Facebook uses FRT to suggest photo tags for its millions of users. According to one estimate, the global facial recognition market is expected to rise to $9.6 billion by 2022, owing to its increasingly frequent use in both the commercial and law enforcement contexts. Today, the government possesses a database of millions of photos, which it uses for law enforcement purposes, and millions more photos are posted to Facebook each day, creating an almost endless supply of photos to which FRT can be applied.
The rise of this technology poses many interesting privacy concerns, but the legal framework surrounding its use is far from clear. Fourth Amendment case law suggests that a person has either no or very little objective expectation of privacy when in public (owing to doctrines such as plain view, the third party doctrine, and the original Katz test). This suggests that a person would have a difficult time pushing back on the use of FRT when it is used to identify them while they are in public. On the other hand, recent cases have recognized that old frameworks might need to be adjusted in light of new technologies that have the potential to reveal an incredible amount of information about an individual (see O’Connor’s concurrence in Riley, as well as discussion of the Mosaic Theory in the Jones case). Many commentators support this movement in the courts, suggesting that the Supreme Court should abandon a rigid Fourth Amendment analysis in favor of a more flexible approach that focuses on the nature of the surveillance.
Such tension in the doctrine may provide a potential source of hope for those who see the rise of FRT as a serious threat to privacy. Indeed, it is not hard to imagine a day in the near future when the use of FRT is so pervasive that it becomes impossible to walk outside without being recognized. One might argue, however, that such a growing threat to privacy may actually become enough to trigger a change in doctrine. Considering both recent Fourth Amendment case law, as well as cases in the First Amendment context that recognize the harmful chilling effects of intrusive surveillance (see the Philadelphia Yearly Meeting case), the courts may actually come to realize that action is necessary if the notion of anonymity is not to go extinct.
 See, e.g., Susan Freiwald, First Principles of Communications Privacy, 2007 Stan. Tech. L. Rev. 3, 9.