If you study Fourth Amendment law and jurisprudential trends, you can—at least in a figurative, tentative, hopeful, and possibly illusory sense—see the future. Subject to all those caveats, I have good news about difficult problems in Fourth Amendment law such as facial recognition and DNA. Curiously, my first writing on the topic I wedged into a filing with the Office of Management Budget (OMB) about the government and commercial brokering of personal information. I told the OMB that modern technology problems can be solved by old-school constitutional interpretation.
OMB recently published a request for information titled “Executive Branch Agency Handling of Commercially Available Information Containing Personally Identifiable Information.” Among the concerns raised is that the government can purchase data from brokers that it would be in violation of the Fourth Amendment to acquire directly. A bill to curtail the practice, called the “Fourth Amendment is Not for Sale Act” passed the House of Representatives last year, to die in the Senate.
The Fourth Amendment works by placing government in the same position as the general public when it seeks access to our persons, houses, papers, and effects, so I’m chary of a special rule that denies the government access to generally available information. The problem lies upstream with whatever makes sensitive personal information available to buy.
Some of the problem stems from the apps and web sites that fool people into revealing information unknowingly. I’ve fixed on the flashlight app that, for no reason, harvested cell phone location data and placed it in the stream of commerce. (It’s not apocryphal. We discussed it some at a recent event on personal information as property). Much of the problem is with people being too willing to use sites and services that don’t protect their information.
To attack the first problem, I argued that the government should exercise good influence on the market by requiring any data broker it deals with to have records showing the lawful provenance of the data it sells. “Brokered data should not have been collected through fraud, misrepresentation, unfair advantage, breach of contract, and so on,” I wrote, suggesting penalties up to debarment from federal contracting for brokers that fail to meet that standard. Let there be no stolen data in the brokerage ecosystem.
But there are Fourth Amendment interests here that haven’t gotten much analysis. And this is where I think I’m onto something interesting.
“What happens in facial recognition?” I rhetorically asked the OMB in my comment.
Generically, such systems take an image of the face and use a template to create a signature. When another image of a face is scanned using the same template, a similar-enough signature is treated as identifying the same person. Public tracking of anyone’s movements is achieved. . . . Try coming up with an honest word or phrase not synonymous with “searches” to describe what these systems do to faces.
When commercially available data includes physiological biometrics such as that in facial recognition the government’s acute analysis of it is, in the natural sense, a search.
In recent decades, the Supreme Court has increasingly returned to textual interpretation, and the non-textual Fourth Amendment “reasonable expectation of privacy” test will go by the wayside. When it does, lower courts and the Supreme Court will have to begin using the words of the Fourth Amendment to administer it. A law of “search” will emerge, joining a relatively well-developed law of seizure founded in property concepts.
An obstacle to recognizing such use of biometric data as searching is
the trope that there is a return to the ‘property-based’ Fourth Amendment. . . .
Because most search and seizure cases deal with things that are owned by a defendant, the property trope could lead some to believe that a thing must be owned by defendants as a matter of property law to be protected. . . .But “their” in the Fourth Amendment—at the time of the founding and now—meant “of or relating to them,” which is only sometimes an expression of what property law determines. We use the possessive pronoun not only because people possess or own the thing, but because it is intimately connected to them, as a face is connected to a person.
The tools for regulating many of the most concerning and invasive uses of technology by the government exist within traditional textual interpretation. As Fourth Amendment law develops, it will be able to meet modern conditions using traditional interpretive tools. You heard it here second, just after the good folks at OMB, who should see that the government should not search commercial data intimately bound up with literal people—not without a warrant, anyway.
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