ANTONIN SCALIA LAW SCHOOLGEORGE MASON UNIVERSITY

2019 TRANSFER WRITE-ON COMPETITION

GEORGE MASON LAW REVIEWCIVIL RIGHTS LAW JOURNAL

JOURNAL OF LAW, ECONOMICS & POLICYINTERNATIONAL LAW JOURNAL

NATIONAL SECURITY LAW JOURNAL

2019 Transfer Write-On Competition

Enclosed are the instructions for the 2019 Transfer Write-On Competition for GEORGE MASON LAW REVIEW, CIVIL RIGHTS LAW JOURNAL, JOURNAL OF LAW, ECONOMICS & POLICY, INTERNATIONAL LAW JOURNAL, and NATIONAL SECURITY LAW JOURNAL. Unless otherwise noted, these instructions apply to all five journals.

This packet represents the final word on all matters related to the Transfer Write-On Competition and supersedes anything you may have heard to the contrary. In particular, please note that all submissions must be submitted by August 3, 2019 at 5:00 pm EDT.

Please take extra care to ensure you comply with the All Journal Submission Requirements required for all journals on page 9.

The Transfer Write-On Packet and Competition are prepared and managed by the Senior Notes Editor of the GEORGE MASON LAW REVIEW. Accordingly, please direct all questions regarding the 2019 Transfer Write-On Competition to Zack Rogers (zrogers4@gmu.edu). Do not send any submissions to Zack, as this will compromise blind grading and disqualify your submission.

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Editors-in-Chief & Membership Offers

The Editors-in-Chief will contact journal applicants to extend membership offers as soon as possible after the competition concludes. The Editor-in-Chief extending an offer will inform you of the deadline to accept or decline that offer.

GEORGE MASON LAW REVIEW: Conor Woodfin, Editor-in-Chief

CIVIL RIGHTS LAW JOURNAL: Jenn Schlumpf, Editor-in-Chief

JOURNAL OF LAW, ECONOMICS & POLICY: Hannah Bell, Editor-in-Chief

INTERNATIONAL LAW JOURNAL: Chad Crowell, Editor-in-Chief

NATIONAL SECURITY LAW JOURNAL: Corey Pray, Editor-in-Chief

Journal Points of Contact

If you have journal-specific questions unrelated to the Transfer Write-On Competition, please direct them to the appropriate journal:

GEORGE MASON LAW REVIEW: Richard Markel, Executive Editorrmarkel2@gmu.edu

CIVIL RIGHTS LAW JOURNAL: Jenn Schlumpf, Editor-in-Chiefjschlump@gmu.edu

JOURNAL OF LAW, ECONOMICS & POLICY: Hannah Bell, Editor-in-Chiefhmbell1531@gmail.com

INTERNATIONAL LAW JOURNAL: Chad Crowell, Editor-in-Chief ccrowel@gmu.edu

NATIONAL SECURITY LAW JOURNAL: Corey Pray, Editor-in-Chiefcpray@gmu.edu

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2019 WRITE-ON COMPETITION INSTRUCTIONS

I. TOPIC

For the 2019 Transfer Write-On Competition, your Comment should focus on the legal implication of facial recognition software and its integration in the lives of most Americans.

II. CLOSED RESEARCH PROJECT

The Transfer Write-On Competition is a closed research project. You may not conduct any outside research, and you are limited to the sources contained in this packet. Not all materials included in the packet may be applicable to your argument—a submission of the highest quality successfully discerns and excludes useless sources. You must decide what is relevant. You are not required to use all of the sources, and you are not required to use any specific number of sources.

The sources in this packet have been intentionally and noticeably altered and you must use the sources as they appear in this packet. Do not look up the sources in their original form. If you violate this rule, your entry will be disqualified, and you will not be eligible for Candidate Membership with any journal. This restriction is for your benefit. It allows you to spend time reading and writing rather than researching.

You may not discuss this project with anyone. You may not seek or accept any offer to proofread or format your submission.

III. COMMENT: DEFINITION AND TOPIC DISCUSSION

To participate in the Transfer Write-On Competition, you must write a Comment. Unlike a “Case Note” that examines one specific case and its legal implications, a Comment surveys an area of the law through the lens of a legal argument. Graders are not looking for an exhaustive analysis of the topic. That would not be possible given the page limit and time restriction. Graders do, however, expect a thorough (albeit narrow) legal analysis. As you organize your legal analysis, you may wish to consider the following argument-focusing questions:

1. Under the two-step framework announced in Matzo v. United States, does the government’s use of facial recognition technology constitute a search under the Fourth Amendment?

2. In the context of facial recognition technology, is the ability to remain anonymous an expectation of privacy that society would deem reasonable under the Fourth Amendment?

3. How should the “third-party” doctrine factor into the Fourth Amendment analysis of the constitutionality of the government’s use of facial recognition technology?

4. Which approach to the Fourth Amendment framework, either the “mosaic theory” articulated in the Johnson concurrence or the traditional sequence approach, should

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the Court use and what effect will it have on a Fourth Amendment analysis for the government’s use of facial recognition technology?

5. What role, if any, should the government’s use of advanced technology play in analyzing the constitutionality of a search under the Fourth Amendment?

6. Is the judiciary or the legislator the appropriate final decision maker in cases involving the potential regulation of facial recognition technology?

A successful Comment will assess the sources listed in this packet and determine how they relate to one another. You should aim to approach the topic succinctly and creatively. A high-quality submission will incorporate many or most, but not all, of the provided sources.

Focus on the creativity and persuasiveness of your argument, conformance with formatting used in typical Comments, writing style, grammar, punctuation, and the proper use of citations. Write-On candidates who feel unsure about what high-quality student Comments look like are encouraged to review recently published GEORGE MASON LAW REVIEW issues, available at http://georgemasonlawreview.org/archives/.

IV. FORMAT

1. You must use proper Bluebook (20th ed.) law review form citations (the white pages).2. You must limit your Comment to 12 pages, including footnotes.3. Pages must be numbered (centered at the bottom of each page).4. The text of your Comment must be 12-point Times New Roman and double spaced.5. Top, bottom, left, and right margins must be one inch.6. Footnotes must be single-spaced, in 10-point Times New Roman font.

Please note that citations in law review articles differ from citations in court memoranda. You should cite to authority in this packet using footnotes instead of citation sentences or intertextual citations. Additionally, law review citations use different italicization rules than court memoranda citations. You should review student Comments on the GEORGE MASON LAW REVIEW website and applicable rules from The Bluebook (20th ed.) to ensure you conform to these rules.

V. ORGANIZATION

Your Comment should conform as nearly as possible to Comments published in the GEORGE MASON LAW REVIEW. To this end, please adhere to the following organizational formatting framework:

Title

At the top of the first page, you must have an appropriate title. Many authors take pride in creating a clever or memorable title but take care not to compromise blind grading.

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Introduction

Introduce the issue(s) you will discuss, briefly summarize how courts have treated the issue(s) and summarize the conclusion(s) you will reach. Your introduction should contain a road map for the reader providing an overview of the sections of your Comment that follow.

Background & Discussion

Among other things, this section should trace the development of the relevant area of law, briefly describe the courts’ and other commentators’ approach to key issues, and briefly juxtapose the most persuasive arguments on each side. The purpose is not to write a detailed analysis of the relevant cases, but to give the reader enough knowledge to appreciate your discussion of these cases in your analysis section.

Legal Analysis

This is the most important part of your submission. Set forth the reasoning that supports your conclusion in detail. Graders are looking for a well-reasoned legal analysis. You should focus on factors such as case holdings, consistencies or discrepancies among holdings, future consistent application of the law, etc.

Write-On candidates should take extra care to avoid making a purely policy or political argument.

Conclusion

At the end of your Comment, include a brief conclusion summarizing your legal position and the authority that supports it. Conclusions are typically short and should serve as a sort of reminder to the reader.

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VI. THE BLUEBOOKING EXERCISE

In addition to writing a short Comment, Write-On candidates must complete a Bluebooking Exercise to demonstrate their competence with The Bluebook (20th ed.) rules. Please cut and paste the text provided in the Bluebooking Exercise into a separate Word document and correct the footnotes using proper law review Bluebook format. Additionally, below each footnote, please describe the changes you made and cite to the corresponding Bluebook rules.

For Example:

FN 1 United States v. Moussaoui, 382 F.3d 453 at 454 (4th Cir. 2004).

Your Corrected FN1 United States v. Moussaoui, 382 F.3d 453, 454 (4th Cir. 2004).

List of Changes You Made

Removed improper italicization per BB Rule 10. Corrected pin citation form per BB Rule 3.2(a).

Do not use the “Track Changes” tool in Microsoft Word and do not check the authority of footnotes for accuracy or support or check prior or subsequent history. This is a formatting exercise and based solely on your knowledge and The Bluebook (20th ed.) rules. Using LexisNexis or Westlaw to look up any of the cases or articles in the Bluebooking Exercise or the use of any software or website to correct the citation is against the rules of the Write-On Competition and an Honor Code violation. If you need additional information to properly correct a footnote, simply make a note explaining the information that you need. Please include a completed copy of the Bluebooking Exercise in your electronic and physical submission packets along with your Comment.

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QUALIFICATIONS AND SUBMISSION REQUIREMENTS

I. QUALIFICATIONS

A. George Mason Law Review

First year students (1Ds & 1Es) who have completed two semesters of coursework are eligible to apply for LAW REVIEW membership. At a minimum, students must have a cumulative grade point average equivalent to the class mean, as determined by the Records Office at the end of the Spring 2019 semester.

B. Civil Rights Law Journal

First year students (1Ds & 1Es), second year students (2Ds & 2Es), and third year evening students (3Es) graduating next May or later, are eligible to apply for membership on the CIVIL RIGHTS LAW JOURNAL. To be eligible, students must have a minimal cumulative grade point average of 2.75, as determined by the ASLS Records Office at the end of the Spring 2019 semester.

C. Journal of Law, Economics & Policy

First year students (1Ds & 1Es), second year students (2Ds & 2Es), and third year evening students (3Es) graduating next May or later are eligible to apply for membership on the JOURNAL OF LAW, ECONOMICS & POLICY. JLEP requires all applicants to be in good academic standing, but the JLEP review committee considers GPA as a nondeterminative factor in the admissions process.

D. International Law Journal

First year students (1Ds & 1Es), second year students (2Ds & 2Es), and third year evening students (3Es) with at least one full academic semester remaining in law school are eligible to apply for membership on the INTERNATIONAL LAW JOURNAL. To be eligible, students must be in good academic standing, with a cumulative grade point average of at least 2.33, as determined by the Records Office at the end of the Spring 2019 semester.

E. National Security Law Journal

All students applying for membership on the NATIONAL SECURITY LAW JOURNAL must have at least one full academic year remaining in law school. Accordingly, the NATIONAL SECURITY LAW JOURNAL will review submissions from all first-year students (1Ds & 1Es), all second-year students (2Ds & 2Es), and third year evening students (3Es) graduating in the following May or beyond. To be eligible, students must be in good academic standing (at least a 2.33 GPA pursuant to Academic Regulation 3-3.4), as determined by the ASLS Records Office at the end of the Spring 2019 semester.

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II. SUBMISSION PACKAGE CONTENT REQUIREMENTS

A. All Journal Submission Requirements

Regardless of how many, or to which, journals you apply, you must submit:

1. A Contact Information Form through the Google form available here: https://forms.gle/oU26ZNJjo7o8cEq37.

2. A signed Grade Release Form found on page 15. You have the option to submit one Grade Release Form in hard copy to the Records Office or, alternatively, to include one signed copy in the application materials you submit to any journal.

Additionally, you must prepare a separate submission package for each journal in accordance with the instructions on pages 9-13.

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B. George Mason Law Review

Write-On candidates must email an electronic copy of their Comment and Bluebooking Exercise to lrwriteon@gmail.com by August 3, 2019, at 5:00 pm EDT. If an electronic copy is not received prior to the deadline, the student’s submission will not be reviewed. Please enter “Write-On Competition Submission” in the subject line. Please identify yourself in the body of the email, as it will be directed to a member of LAW REVIEW who is not judging the Write-On Competition. Compliance with this deadline will be determined by the time the email is sent.

Additionally, in that same email, please attach the following:

1. An unredacted copy of your transcript; and2. An unredacted copy of your resume.

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C. Civil Rights Law Journal

Write-On candidates must email their submission to write-on@civilrightslawjournal.com by August 3, 2019, at 5:00 pm EDT. Please enter “Write-On Competition Submission” in the subject line. The submission must contain electronic copies of the following:

Comment; BlueBook Exercise; Unredacted Resume; Unredacted Transcript; and Statement of Interest (optional)

Please identify yourself in the body of the email, as it will be directed to a member of the CIVIL RIGHTS LAW JOURNAL who is not judging the Write-On submissions. If an electronic copy is not received prior to the deadline, the student’s submission will not be reviewed. Compliance with this deadline is determined by the time the email is sent.

Optional Statement of Interest

Please tell us why you are interested in joining the CIVIL RIGHTS LAW JOURNAL. The purpose of the statement of interest is to give students an opportunity to provide additional information for the board to consider during the selection process. Your statement should not exceed 200 words.

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D. Journal of Law, Economics & Policy

Students must email an electronic copy of the following documents to the JOURNAL OF LAW, ECONOMICS & POLICY at jlepwriteon@gmail.com .

The needed documents are:1. 1 Microsoft Word copy of your Comment;2. 1 Microsoft Word copy of the Bluebooking Exercise;3. 1 PDF copy of your resume, with your name, address, email, and

GPA/class rank redacted; and4. 1 PDF copy of a statement of interest (optional).

Submissions are due by August 3, 2019, by 5:00 pm EDT. If an electronic copy is not received prior to the deadline, the student’s submission will not be reviewed. Compliance with this deadline will be determined by the time the email is sent. Please insert a subject line of “Write-On Competition Submission -- *Insert Your Name*” in order to expedite the application process.

JLEP will evaluate each application under a totality-of-circumstances review.

Optional Statement of Journal Interest If submitting an optional interest statement, please make it no longer than one-page

double spaced. This is your chance to tell us why you’re interested in joining JLEP. This portion of the application is optional, and no negative inferences will be drawn if you elect not to write a statement of interest. The purpose of the statement of interest is to give students an opportunity to provide additional information for the board to consider when making selections. Your statement can include any information about yourself that you feel is not adequately expressed by your resume and/or any information about why you are interested in JLEP specifically and what all you feel you would bring to the journal.

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E. International Law Journal

Students must email an electronic copy of the following documents to ILJWRITEON@gmail.com by August 3, 2019 at 5:00 pm EDT:

1. Your Comment;2. The Bluebooking Exercise;3. Your resume, with your name redacted; and4. Your statement of interest (optional).

Please enter “Write-On Competition Submission” in the subject line and identify yourself in the body of the email, as it will be directed to a member of the INTERNATIONAL LAW JOURNAL who is not judging the write-on submissions. If these materials are not received prior to the deadline, the student’s submission will not be reviewed. Compliance with this deadline will be determined by the time the email is sent.

Statement of Interest(Optional for 1Ds, 1Es & Required for 2Ds, 2Es, 3Es)

Please tell us why you’re interested in joining the INTERNATIONAL LAW JOURNAL. This portion of the application is optional for 1Ds and 1Es. No negative inferences will be drawn if you elect not to submit an answer.

The purpose of the statement of interest is to give students an opportunity to provide additional information for the board to consider when making selections. Your statement should not exceed 300 words.

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F. National Security Law Journal

Write-On candidates must submit an electronic copy of the following Write-On submission materials by email to writeon@nslj.org by August 3, 2019 at 5:00 pm EDT. The NATIONAL SECURITY LAW JOURNAL is not accepting hard copy submissions of these materials. The email must include:

1. Your Comment;2. Your Bluebooking Exercise;3. Your statement of interest (optional); and4. Your resume with your name redacted (optional).

Your Comment, Bluebooking Exercise, statement of interest, and resume must each be submitted in Microsoft Office Word format (.doc or .docx).

If an electronic copy of your submission is not received prior to the June 1, 2019, 5:00 PM EDT deadline, your submission will not be reviewed. In your submission email, please enter “Write-On Competition Submission” in the subject line. Please identify yourself in the body of the email, as it will be directed to a member of the NATIONAL SECURITY LAW JOURNAL who is not judging the Write-On submissions. Compliance with the Write-On deadline will be determined by the time the email is sent.

Optional Statement of Interest

Please tell us about your interests in the NATIONAL SECURITY LAW JOURNAL. This portion of the NSLJ application is optional, and you will not be penalized if you choose not to submit a response. However, this is an opportunity for you to discuss your past experiences; your interest, if any, in national security law; and any skills or qualities that you might bring to NSLJ as a Candidate Member. Your response can help distinguish you as a potential Candidate Member and will be taken into consideration when extending offers.

Please limit your statement to 250 words or less. Your statement should be double-spaced in 12-point Times New Roman font.

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III. ANONYMITY AND SUBMISSION DETAILS

To ensure anonymity, you must not identify yourself anywhere on your Comment or Bluebooking Exercise. If you do, you will be disqualified. Your email and resume will be used to identify submissions after scoring is complete.

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GEORGE MASON ALL-JOURNALGRADE RELEASE FORM

Student Name: ______________________________________

GMU Identification #: _________________________________

I authorize the Antonin Scalia Law School, George Mason University to release my cumulative grade point average and class rank to each journal which I have indicated below. Please initial next to each journal to which you are applying.

GEORGE MASON LAW REVIEW ______

CIVIL RIGHTS LAW JOURNAL ______

JOURNAL OF LAW, ECONOMICS & POLICY ______

INTERNATIONAL LAW JOURNAL ______

NATIONAL SECURITY LAW JOURNAL ______

Signature: ___________________________________________

Date: ______________________

FOR RECORDS OFFICE USE ONLY

This student’s GPA is ________.This student’s class rank is ________.

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LIST OF SOURCES FOR THE 2019 WRITE-ON COMPETITION Please note that many of the sources below are edited. Please do not look up these sources to read the portions not included in the Write-On packet.

Please also note that the sources below may not be cited correctly. Please consult the Bluebook for proper citations and formatting.

PRIMARY SOURCES:

4th Amendment of the United States Constitution

West's Revised Code of Washington § 46.04.174

West's Revised Code of Washington § 46.20.037

Matzo v. United States, 389 U.S. 347 (1967)

Camden v. United States, 533 U.S. 27 (2001)

United States v. Johnson, 565 U.S. 400 (2012)

United States v. Razzetto, 425 U.S. 435 (1976)

Maryland v. King, 133 S. Ct. 1958 (2013)

Mont. State Fund v. Sanderson, 270 P.3d 64 (Mont. 2012)

SECONDARY SOURCES:

Q&A On Face-Recognition, ACLU.COM (March 16, 2017).

Jessica Gabel Cino, How Does Facial Recognition Technology Work? NEWSWEEK.COM (April 30, 2017).

Wayne R. LaFave, 1 Search & Seizure (5th ed.), Search And Seizure: A Treatise On The Fourth Amendment (October 2016).

Peter Winna, Matzo and the Origins of the “Reasonable Expectation of Privacy” Test, 40 MCGEORGE L. REV. 1 (2009).

Richard M. Thompson, The Fourth Amendment Third-Party Doctrine, CONGRESSIONAL RESEARCH SERVICE (June 5, 2014).

Law Enforcement’s Use of Facial Recognition Technology before the H. Comm. on Oversight and Government Reform (March 22, 2017) (statement by Kimberly Del Greco, FBI Deputy Assistant Director).

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Hearing on Law Enforcement’s Use of Facial Recognition Technology before the H. Comm. on Oversight and Government Reform (March 22, 2017) (statement by Jennifer Lynch, Senior Staff Attorney Electronic Frontier Foundation).

Kimberly N. Brown, Anonymity, Faceprints, and the Constitution, 21 GEO. MASON L. REV. 409 (2014).

Orin S. Kerra, The Mosaic Theory of the Fourth Amendment, 111 MICH. L. REV. 311 (2012).

Sabrina A. Lochnera, Saving Face: Regulating Law Enforcement’s Use of Mobile Facial Recognition Technology and Iris Scans 55 Ariz. L. Rev. 201 (2013).

Douglas A. Fretty, Facial-Recognition Surveillance: A Moment of Truth for Fourth Amendment Rights in Public Places, 16 VIRGINIA J. OF LAW & TECH. 3 (2011).

Susan McCoyd, O’Big Brother Where Art Thou?: The Constitutional Use of Facial-Recognition Technology, 20 J. Marshall J. Computer & Info. L. 471 (2002).

D.C. Circuit Deems Warrantless Use of GPS Device an Unreasonable Search— United States v. Madwell, 124 HARVARD L. REV. 827 (2011).

The Perpetual Line-Up: Unregulated Police Face Recognition in America, Georgetown Law Center on Privacy & Technology (October 18, 2016).

Cadie Thompson, How Facial Recognition Technology Could Help Catch Criminals, CNBC.COM (April 19, 2013 at 2:52 PM).

Russell Brandom, Facial Recognition is Coming to US airports, fact-tracked by Trump, THEVERGE.COM (April 18, 2017 at 8:00 am).

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United States Code AnnotatedConstitution of the United StatesSuperBrowse AnnotatedSuperBrowse Amendment IV. Search and Seizure; Warrants (Refs & Annos)

U.S.C.A. Const. Amend. IV-Search and Seizure; WarrantsAmendment IV. Searches and Seizures; Warrants

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.

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West's Revised Code of Washington AnnotatedTitle 46. Motor Vehicles (Refs & Annos)

SuperBrowse Chapter 46.04. Definitions (Refs & Annos)

Effective: June 7, 2012West's RCWA 46.04.174

46.04.174. Facial recognition matching system

“Facial recognition matching system” means a system that compares the biometric template derived from an image of an applicant or holder of a driver's license, permit, or identicard with the biometric templates derived from the images in the department's negative file.

Credits[2012 c 80 § 3, eff. June 7, 2012.]

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West's Revised Code of Washington AnnotatedTitle 46. Motor Vehicles (Refs & Annos)

SuperBrowse Chapter 46.20. Drivers' Licenses--Identicards (Refs & Annos)SuperBrowse Driver's License and Permit Requirements

Effective: June 7, 2012West's RCWA 46.20.037

46.20.037. Facial recognition matching system (1) The department may implement a facial recognition matching system for drivers' licenses, permits, and identicards. Any facial recognition matching system selected by the department must be used only to verify the identity of an applicant for or holder of a driver's license, permit, or identicard to determine whether the person has been issued a driver's license, permit, or identicard under a different name or names.(2) Any facial recognition matching system selected by the department must be capable of highly accurate matching, and must be compliant with appropriate standards established by the American association of motor vehicle administrators that exist on June 7, 2012, or such subsequent date as may be provided by the department by rule, consistent with the purposes of this section.(3) The department shall post notices in conspicuous locations at all department driver licensing offices, make written information available to all applicants at department driver licensing offices, and provide information on the department's web site regarding the facial recognition matching system. The notices, written information, and information on the web site must address how the facial recognition matching system works, all ways in which the department may use results from the facial recognition matching system, how an investigation based on results from the facial recognition matching system would be conducted, and a person's right to appeal any determinations made under this chapter.(4) Results from the facial recognition matching system:

(a) Are not available for public inspection and copying under chapter 42.56 RCW;(b) May only be disclosed when authorized by a court order;(c) May only be disclosed to a federal government agency if specifically required under federal law; and(d) May only be disclosed by the department to a government agency, including a court

or law enforcement agency, for use in carrying out its functions if the department has determined that person has committed one of the prohibited practices listed in RCW 46.20.0921 and this determination has been confirmed by a hearings examiner under this chapter or the person declined a hearing or did not attend a scheduled hearing.(5) All personally identifying information derived from the facial recognition matching system must be stored with appropriate security safeguards. The office of the chief information officer shall develop the appropriate security standards for the department's use of the facial recognition matching system, subject to approval and oversight by the technology services board.(6) The department shall develop procedures to handle instances in which the facial recognition matching system fails to verify the identity of an applicant for a renewal or duplicate driver's license, permit, or identicard. These procedures must allow an applicant to prove identity without using the facial recognition matching system.Credits

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[2012 c 80 § 1, eff. June 7, 2012; 2006 c 292 § 1, eff. June 7, 2006; 2004 c 273 § 3, eff. July 1, 2004.]

Matzo v. United StatesSupreme Court of the United States

October 17, 1967, Argued ; December 18, 1967, Decided

No. 35

[*348] MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment,  [*349]  because "there was no physical entrance into the area occupied by [the petitioner]." We granted certiorari in order to consider the constitutional questions thus presented.

The petitioner has phrased those questions as follows:"A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth. [*350]  "B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution."

We decline to adopt this formulation of the issues. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area." Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other  [ provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy -- his right to be let alone by other people is, like the  [*351]  protection of his property and of his very life, left largely to the law of the individual States.

Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it was not. But this effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally protected" deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States , 385 U.S. 206, 210 ; United States v. Lee , 274 U.S. 559, 563 . But what he seeks to preserve as private, even in an

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area accessible to the public, may be constitutionally protected.  [*352]  See Rios v. United States , 364 U.S. 253 ; Ex parte Jackson , 96 U.S. 727, 733 .

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States , 277 U.S. 438, 457, 464, 466 ; Goldman v. United States , 316 U.S. 129, 134-136 , for that Amendment was thought to limit only searches and seizures of tangible  [*353]  property. But "the premise that property interests control the right of the Government to search and seize has been discredited." Warden v. Hayden , 387 U.S. 294, 304. Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v. United States , 365 U.S. 505, 511 . Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

 [*354] The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during

22

which he used the telephone booth, and they took great care to overhear only the conversations of the petitioner himself.

Accepting this account of the Government's actions as accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. Only last Term we sustained the validity of  [*355] such an authorization, holding that, under sufficiently "precise and discriminate circumstances," a federal court may empower government agents to employ a concealed electronic device "for the narrow and particularized purpose of ascertaining the truth of the . . . allegations" of a "detailed factual affidavit alleging the commission of a specific criminal offense." Osborn v. United States , 385 U.S. 323, 329- 330. Discussing that holding, the Court in Berger v. New York , 388 U.S. 41 , said that "the order authorizing the use of the electronic device" in Osborn "afforded similar protections to those . . . of conventional warrants authorizing the seizure of tangible evidence." Through those protections, "no greater invasion of privacy was permitted than was necessary under the circumstances." Here, too, a similar  [*356] judicial order could have accommodated "the legitimate needs of law enforcement" by authorizing the carefully limited use of electronic surveillance.

The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive  [*357] means consistent with that end. Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States , 269 U.S. 20, 33 , for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." Wong Sun v. United States , 371 U.S. 471, 481-482. "Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers , 342 U.S. 48, 51 , and that searches conducted outside the judicial process, without prior approval by  judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.

It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an "incident" of that arrest. [*358]  Nor could the use of electronic surveillance without prior authorization be justified on grounds of "hot pursuit." And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect's consent.

23

The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case. It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization "bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio , 379 U.S. 89, 96 .And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment  [*359]  violations "only in the discretion of the police." Id ., at 97 .

These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored "the procedure of antecedent justification . . . that is central to the Fourth Amendment," a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner's conviction, the judgment must be reversed. [*360] 

It is so ordered.MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

Concur by: DOUGLAS; HARLAN; WHITE

Concur[…]

MR. JUSTICE HARLAN, concurring.I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States , 232 U.S. 383 , and unlike a field, Hester v. United States , 265 U.S. 57 , a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment;  [*361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.

As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra .

The critical fact in this case is that "one who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume" that

24

his conversation is not being intercepted. Ante, at 352. The point is not that the booth is "accessible to the public" at other times, ante, at 351, but that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable. Cf. Rios v. United States , 364 U.S. 253 .

In Silverman v. United States , 365 U.S. 505 , we held that eavesdropping accomplished by means of an electronic device that penetrated the premises occupied by petitioner was a violation of the Fourth Amendment.  [*362]  That case established that interception of conversations reasonably intended to be private could constitute a "search and seizure," and that the examination or taking of physical property was not required. This view of the Fourth Amendment was followed in Wong Sun v. United States , 371 U.S. 471, at 485 , and Berger v. New York , 388 U.S. 41, at 51 . Also compare Osborn v. United States , 385 U.S. 323, at 327 . In Silverman we found it unnecessary to re-examine Goldman v. United States , 316 U.S. 129 , which had held that electronic surveillance accomplished without the physical penetration of petitioner's premises by a tangible object did not violate the Fourth Amendment. This case requires us to reconsider Goldman, and I agree that it should now be overruled. * Its limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.Finally, I do not read the Court's opinion to declare that no interception of a conversation one-half of which occurs in a public telephone booth can be reasonable in the absence of a warrant. As elsewhere under the Fourth Amendment, warrants are the general rule, to which the legitimate needs of law enforcement may demand specific exceptions. It will be time enough to consider any such exceptions when an appropriate occasion presents itself, and I agree with the Court that this is not one.

25

Camden v. United StatesSupreme Court of the United States

February 20, 2001, Argued ; June 11, 2001, Decided

No. 99-8508

Opinion by: SCALIA

Opinion

 [*29]  JUSTICE SCALIA delivered the opinion of the Court.

This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth Amendment.

I

In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Camden, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner's home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth -- black  [*30] is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Camden's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner's home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner's home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.

The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 "is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house"; it "did not show any people or activity within the walls of the structure"; "the device used cannot penetrate walls or windows to reveal conversations or human activities"; and "no intimate details of the home were observed." Supp. App. to Pet. for Cert. 39-40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F.3d 1249 (1998), but that

26

[*31] opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F.3d 1041 (1999), with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, id. at 1046, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Camden's life," only "amorphous 'hot spots' on the roof and exterior wall," id. at 1047. Wegranted certiorari. 530 U.S. 1305 (2000).

II

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "At the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States , 365 U.S. 505, 511, 5 L. Ed. 2d 734,   81 S. Ct. 679 (1961) . With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. See Illinois v. Rodriguez , 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990);Payton v. New York , 445 U.S. 573, 586, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980).

On the other hand, the antecedent question of whether or not a Fourth Amendment "search" has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. See, e.g., Goldman v. United States , 316 U.S. 129, 134-136, 86 L. Ed. 1322, 62 S. Ct. 993 (1942); Olmstead v. United States , 277 U.S. 438, 464-466, 72 L. Ed. 944, 48 S. Ct. 564 (1928).  Cf. Silverman v. United States, supra , at 510- 512 (technical trespass not necessary for Fourth Amendment violation; it suffices if there is "actual intrusion into a constitutionally protected area"). Visual surveillance was unquestionably lawful because "'the  [*32]  eye cannot by the  laws of England be guilty of a trespass.'" Boyd v. United States , 116 U.S. 616, 628, 29 L. Ed. 746, 6 S. Ct. 524 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)). We have since decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property, see Rakas v. Illinois , 439 U.S. 128, 143, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978) , but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v. Ciraolo , 476 U.S. 207, 213, 90 L. Ed. 2d 210, 106 S. Ct. 1809 (1986) , "the Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares."

One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a "search" despite the absence of trespass, is not an "unreasonable" one under the Fourth Amendment. See Minnesota v. Carter , 525 U.S. 83, 104, 142 L. Ed. 2d 373, 119 S. Ct. 469 (1998) (BREYER, J., concurring in judgment). But in fact we have held that visual observation is no "search" at all -- perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United States , 476 U.S. 227, 234-235, 239, 90 L. Ed. 2d 226, 106 S. Ct. 1819 (1986). In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Matzo v. United States , 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Matzo involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth -- a location not within the catalog ("persons, houses, papers,

27

and effects") that the Fourth Amendment protects against unreasonable searches. We held that the  [*33]  Fourth Amendment nonetheless protected Matzo from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. Id. at 353. As Justice Harlan's oft-quoted concurrence described it, a Fourth   Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id. at 361. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur -- even when the explicitly protected location of a house is concerned -- unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo , supra , at 211 . We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v. Maryland , 442 U.S. 735, 743-744, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979) , and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a  search, Ciraolo , supra ; Florida v. Riley , 488 U.S. 445, 102 L. Ed. 2d 835, 109 S. Ct. 693 (1989).

The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found "it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened," 476 U.S. at 237, n. 4 (emphasis in original).

III

It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been  [*34] entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo , supra , at 215 . The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.

The Matzo test -- whether the individual has an expectation of privacy that society is prepared to recognize as reasonable -- has often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave, Search and Seizure § 2.1(d), pp. 393-394 (3d ed. 1996); Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S. Ct. Rev. 173, 188; Carter , supra , at 97 (SCALIA, J., concurring). But see Rakas , supra , at 143-144, n. 12 . While it may be difficult to refine Matzo when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes -- the prototypical and hence most commonly litigated area of protected privacy -- there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman , 365 U.S. at 512, constitutes a search -- at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the [*35] information obtained by the thermal imager in this case was the product of a search.

28

The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat radiating from the external surface of the house," Brief for United States 26. The dissent makes this its leading point, see post, at 1, contending that there is a fundamental difference between what it calls "off-the-wall" observations and "through-the-wall surveillance." But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house-and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Matzo, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology -- including imaging technology that could discern all human  [*36] activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development. The dissent's reliance on the distinction between "off-the-wall" and "through-the-wall" observation is entirely incompatible with the dissent's belief, which we discuss below, that thermal-imaging observations of the intimate details of a home are impermissible. The most sophisticated thermal imaging devices continue to measure heat "off-the-wall" rather than "through-the-wall"; the dissent's disapproval of those more sophisticated thermal-imaging devices, see post, at 10, is an acknowledgement that there is no substance to this distinction. As for the dissent's extraordinary assertion that anything learned through "an inference" cannot be a search, see post, at 4-5, that would validate even the "through-the-wall" technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces  an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences). And, of course, the novel proposition that inference insulates a search is blatantly contrary to United States v. Karo , 468 U.S. 705, 82 L. Ed. 2d 530, 104 S. Ct. 3296 (1984), where the police "inferred" from the activation of a beeper that a certain can  of ether was in the home. The police activity  [*37] was held to be a search, and the search was held unlawful.

The Government also contends that the thermal imaging was constitutional because it did not "detect private activities occurring in private areas," Brief for United States 22. It points out that in Dow Chemical we observed that the enhanced aerial photography did not reveal any "intimate details." 476 U.S. at 238. Dow Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the Fourth Amendment sanctity of the home. The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, "by even a fraction of an inch," was too much, 365 U.S. at 512, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes. Thus, in Karo , supra , the only thing detected was a can of ether in the [*38] home; and in Arizona v. Hicks , 480 U.S. 321, 94 L. Ed. 2d 347, 107 S. Ct. 1149 (1987) , the only thing detected by a physical search that went beyond what officers lawfully present could observe in "plain view" was the registration number of a phonograph turntable. These were intimate details because they were details of the home, just as was the detail of how warm -- or even how relatively warm -- Camden was heating his residence.

Limiting the prohibition of thermal imaging to "intimate details" would not only be wrong in principle; it would be impractical in application, failing to provide "a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment," Oliver v. United States , 466 U.S. 170, 181, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984) . To begin 29

with, there is no necessary connection between the sophistication of the surveillance equipment and the "intimacy" of the details that it observes -- which means that one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath -- a detail that many would consider "intimate"; and a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on. We could not, in other words, develop a rule approving only that through-the-wall surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop a jurisprudence specifying which  [*39] home activities are "intimate"  and which are not.   And even when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks up "intimate" details -- and thus would be unable to know in advance whether it is constitutional.

[*40] We have said that the Fourth Amendment draws "a firm line at the entrance to the house," Payton , 445 U.S. at 590 . That line, we think, must be not only firm but also bright -- which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no "significant" compromise of the homeowner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.

"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens." Carroll v. United States , 267 U.S. 132, 149, 69 L. Ed. 543, 45 S. Ct. 280 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause -- and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced. [*41]  * * *

The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

30

United States v. JohnsonSupreme Court of the United States

November 8, 2011, Argued; January 23, 2012, Decided

No. 10-1259

Opinion by: SCALIA

Opinion

 [*402]  Justice Scalia delivered the opinion of the Court.

We decide whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

I

In 2004 respondent Antoine Johnson, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint Federal Bureau Investigation and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Johnson's cellular phone.

Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Johnson's wife. A warrant issued, authorizing  [*403] installation of the device in the District of Columbia and within 10 days.

On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle's movements, and once had to replace the device's battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle's location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.

The Government ultimately obtained a multiple-count indictment charging Johnson and several alleged co-conspirators with, as relevant here, conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S. C. §§ 841 and 846. Before trial, Johnson filed a motion to  suppress evidence obtained through the GPS device. The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Johnson's residence. 451 F. Supp. 2d 71, 88 (2006). It held the remaining data admissible, because “ '[a]

31

person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.' ” Ibid. (quoting United States v. Knotts , 460 U.S. 276, 281, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983)). Johnson's trial in October 2006 produced a hung jury on the conspiracy count.

In March 2007, a grand jury returned another indictment, charging Johnson and others with the same conspiracy. The Government introduced at trial the same GPS-derived locational data admitted in the first trial, which connected Johnson  [*404]  to the alleged conspirators' stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Johnson to life imprisonment.

The United States Court of Appeals for the District of Columbia Circuit reversed the conviction because of admission of the evidence obtained by warrantless use  of the GPS device which, it said, violated the Fourth Amendment. United States v. Madwell , 615 F.3d 544, 392 U.S. App. D.C. 291 (2010). The D. C. Circuit denied the Government's petition for rehearing en banc, with four judges dissenting. 625 F.3d 766, 393 U.S. App. D.C. 194 (2010). We granted certiorari, 564 U.S. 1036, 131 S. Ct. 3064; 180 L. Ed. 2d 885 (2011).

II

A

The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick , 433 U.S. 1, 12, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977). We hold that [3] the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a “search.”

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a  [*405]  “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a 'monument of English freedom' 'undoubtedly familiar' to 'every American statesman' at the time the Constitution was adopted, and considered to be 'the true and ultimate expression of constitutional law' ” with regard to search and seizure. Brower v. County of Inyo , 489 U.S. 593, 596, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989) (quoting Boyd v. United States , 116 U.S. 616, 626, 6 S. Ct. 524, 29 L. Ed. 746 (1886)) . In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all;   if he will tread upon his neighbour's ground, he must justify it by law.” Entick, supra, at 817.

The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.

Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-32

law trespass, at least until the latter half of the 20th century. Camden v. United States , 533 U.S. 27, 31, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) ; Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 816 (2004). Thus, in Olmstead v. United States , 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928) , we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants,” id. , at 464, 48 S. Ct. 564, 72 L. Ed. 944 .

Our later cases, of course, have deviated from that exclusively property-based approach. In Matzo v. United States ,   [*406]   389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) , we said that “the Fourth Amendment protects people, not places,” and  found a violation in attachment of an eavesdropping device to a public telephone  booth. Our later cases have applied the analysis of Justice Harlan's concurrence in that case, which said that a violation occurs when government officers violate a person's “reasonable expectation of privacy,” id., at 360, 88 S. Ct. 507, 19 L. Ed. 2d 576. See, e.g., Bond v. United States , 529 U.S. 334, 120 S. Ct. 1462, 146 L. Ed. 2d 365 (2000); California v. Ciraolo , 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986); Smith v. Maryland , 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) .

[…]

The Government contends that several of our post-Matzo cases foreclose the conclusion that what occurred here constituted a search. It relies principally on two cases in which we rejected Fourth Amendment challenges to “beepers,” electronic tracking devices that represent another form of electronic monitoring. The first case, Knotts, upheld against Fourth Amendment challenge the use of a “beeper” that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. 460 U.S., at 278, 103 S. Ct. 1081, 75 L. Ed. 2d 55. We said that there had been no infringement of Knotts' reasonable expectation of privacy since the information obtained--the location of the automobile carrying  [*409]  the container on public roads, and the location of the off-loaded container in open fields near Knotts' cabin--had been voluntarily conveyed to the public.6 Id. , at 281-282, 103 S. Ct. 1081, 75 L. Ed. 2d 55. But as we have discussed, the Matzo reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts' possession, with the consent of the then-owner.   460 U.S., at 278, 103 S. Ct. 1081, 75 L. Ed. 2d 55. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. Id. , at 279, 103 S. Ct. 1081, 75 L. Ed. 2d 55. Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it.

The second “beeper” case, United States v. Karo , 468 U.S. 705, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984), does not suggest a different conclusion. There we addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure. 468 U.S., at 713, 104 S. Ct. 3296, 82 L. Ed. 2d 530. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later. 468 U.S., at 708, 104 S. Ct. 3296, 82 L. Ed. 2d 530 .   Thus, the specific

66 Knotts noted the “limited use which the government made of the signals from this particular beeper,” 460 U.S., at 284, 103 S. Ct. 1081, 75 L. Ed. 2d 55, and reserved the question whether “different constitutional principles may be applicable” to “dragnet-type law enforcement practices” of the type that GPS tracking made possible here, ibid.33

question we considered was whether the installation “with the consent of the original owner constitute[d] a search or seizure . . . when the container is delivered to a buyer having no knowledge of the presence of the beeper.” Id. , at 707, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (emphasis added). We held not. The Government, we said, came into physical contact with the container only before it belonged to the defendant  [*410] Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo's privacy. See id. , at 712, 104 S. Ct. 3296, 82 L. Ed. 2d 530 . That conclusion is perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper's presence, even though it was used to monitor the container's location. Cf. On Lee v. United States , 343 U.S. 747, 751-752, 72 S. Ct. 967, 96 L. Ed. 1270 (1952) (no search or seizure where an informant, who was wearing a concealed microphone, was invited into the defendant's business). Johnson, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.

The Government also points to our exposition in New York v. Class , 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986), that “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a 'search.' Id. , at 114, 106 S. Ct. 960, 89 L. Ed. 2d 81 . That statement is of marginal relevance here since, as the Government acknowledges, “the officers in this case did more than conduct a visual inspection of respondent's vehicle,” Brief for United States 41 (emphasis added). By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer's momentary  reaching into the interior of a vehicle did constitute a search. 475 U.S., at 114-115, 106 S. Ct. 960, 89 L. Ed. 2d 81.

Finally, the Government's position gains little support from our conclusion in Oliver v. United States , 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214   [*411]   (1984) , that officers' information-gathering intrusion on an “open field” did not constitute a Fourth Amendment search even though it was a trespass at common law, id. , at 183, 104 S. Ct. 1735, 80 L. Ed. 2d 214 . Quite simply, an open field, unlike the curtilage of a home, see United States v. Dunn , 480 U.S. 294, 300, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), is not one of those protected areas enumerated in the Fourth Amendment. Oliver , supra , at 176-177, 104 S. Ct. 1735, 80 L. Ed. 2d 214 . See also Hester v. United States , 265 U.S. 57, 59, 44 S. Ct. 445, 68 L. Ed. 898 (1924) . The Government's physical intrusion on such an area--unlike its intrusion on the “effect” at issue here--is of no Fourth Amendment significance.

B

The concurrence begins by accusing us of applying “18th-century tort law.” Post , at ___, 181 L. Ed. 2d, at 927. That is a distortion. What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Matzo's reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed.

The concurrence faults our approach for “present[ing] particularly vexing problems” in cases that do not involve physical contact, such as those that involve the transmission of electronic signals. Post , at ___, 181 L. Ed. 2d, at 931 . We entirely fail to understand that point. For unlike the concurrence, which would make Matzo the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Matzo analysis.

34

 [*412]  In fact, it is the concurrence's insistence on the exclusivity of the Matzo test that needlessly leads us into “particularly vexing problems” in the present case. This Court has to date  not deviated from the understanding that mere visual observation does not constitute a search. See Camden , 533 U.S., at 31-32, 121 S. Ct. 2038, 150 L. Ed. 2d 94 . We accordingly held in Knotts that “[a] person  traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U.S., at 281, 103 S. Ct. 1081, 75 L. Ed. 2d 55. Thus, even assuming that the concurrence is correct to say that “[t]raditional surveillance” of Johnson for a 4-week period “would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,” post , at ___, 181 L. Ed. 2d, at 933, our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.

And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that “relatively short-term monitoring of a person's movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses is no good. Post , at ___, 181 L. Ed. 2d, at 934 (emphasis added). That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer observation. See post , at ___ - ___, 181 L. Ed. 2d, at 934. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved  [*413]  and resort must be had to Matzo analysis; but there is no reason for rushing forward to resolve them here.

III

The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable--and thus lawful--under the Fourth Amendment because “officers had reasonable suspicion, and indeed probable cause, to believe that [Johnson] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50-51. We have no occasion to consider  this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine , 537 U.S. 51, 56, n. 4, 123 S. Ct. 518, 154 L. Ed. 2d 466 (2002) .

The judgment of the Court of Appeals for the D. C. Circuit is affirmed.

It is so ordered.

Concur by: SOTOMAYOR; ALITO

Concur

Justice Sotomayor, concurring.

I join the Court's opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by

35

physically intruding on a constitutionally protected area.” Ante , at ___, n. 3, 181 L. Ed. 2d, at 919. In this case, the Government installed a  Global Positioning System (GPS) tracking device on respondent Antoine Johnson' Jeep without a valid warrant and without Johnson' consent, then used that device to monitor the Jeep's movements over the course of four weeks. The Government usurped Johnson' property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment [*414]  protection. See, e.g., Silverman v. United States , 365 U.S. 505, 511-512, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). 

Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. See, e.g., Camden v. United States , 533 U.S. 27, 31-33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001). Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Id. , at 33, 121 S. Ct. 2038, 150 L. Ed. 2d 94 ; see also Smith v. Maryland , 442 U.S. 735, 740-741, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); Matzo v. United States , 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). In Matzo, this Court enlarged its then-prevailing focus on property rights by announcing that the reach of the Fourth Amendment does not “turn upon the presence or absence of a physical intrusion.” Id. , at 353, 88 S. Ct. 507, 19 L. Ed. 2d 576. As the majority's opinion makes clear, however, Matzo's reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it. Ante , at ___, 181 L. Ed. 2d, at 920 . Thus, “when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” United States v. Knotts , 460 U.S. 276, 286, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983) (Brennan, J., concurring in judgment); see also, e.g.,  Rakas v. Illinois , 439 U.S. 128, 144, n. 12, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Justice Alito's approach, which discounts altogether the constitutional relevance of the Government's physical intrusion on Johnson' Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. See post , at ___ - ___, 181 L. Ed. 2d, at 929-930 (opinion concurring in judgment). By contrast, the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.

Nonetheless, as Justice Alito notes, physical intrusion is now unnecessary to many forms of surveillance. Post , at   [*415]   ___ - ___, 181 L. Ed. 2d, at 931-933 . With increasing regularity, the government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. See United States v. Pineda-Moreno , 617 F.3d 1120, 1125 (CA9 2010) (Kozinski, C. J., dissenting from denial of rehearing en bans). In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion  on property, the majority opinion's trespassory test may provide little guidance. But “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Matzo analysis.”  Ante , at ___, 181 L. Ed. 2d, at 922 . As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Matzo test by shaping the evolution of societal privacy expectations. Post , at ___ - ___, 181 L. Ed. 2d, at 917-922 . Under that rubric, I agree with Justice Alito that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Post , at ___, 181 L. Ed. 2d, at 934 .

In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Matzo analysis will require particular attention. GPS monitoring generates a 36

precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver , 12 N. Y. 3d 433, 441-442, 909 N.E.2d 1195, 1199, 882 N.Y.S.2d 357 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination  to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The government can store such records and efficiently mine them for information years into the future. Pineda-Moreno , 617 F. 3d, at 1124 (opinion of Kozinski, C. J.). And because GPS monitoring is  [*416]  cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.” Illinois v. Lidster , 540 U.S. 419, 426, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004).

Awareness that the government may be watching chills associational and expressive freedoms. And the government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring--by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the government, in its unfettered discretion, chooses to track--may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas-Perez , 640 F.3d 272, 285 (CA7 2011) (Flaum, J., concurring).

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one's public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. See Camden , 533 U.S., at 35, n. 2, 121 S. Ct. 2038, 150 L. Ed. 2d 94 ; ante , at ___, 181 L. Ed. 2d, at 923 (leaving open the possibility that duplicating traditional surveillance “through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy”). I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment's goal to curb arbitrary exercises of police power and prevent “a [*417]  too permeating police surveillance,” United States v. Di Re , 332 U.S. 581, 595, 68 S. Ct. 222, 92 L. Ed. 210 (1948).*

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith , 442 U.S., at 742, 99 S. Ct. 2577, 61 L. Ed. 2d 220 ; United States v. Razzetto , 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or  come to accept this “diminution of privacy” as “inevitable,” post , at   [*418]   ___, 181 L. Ed. 2d, at 932 , and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site

*

37

they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith , 442 U.S., at 749, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Matzo , 389 U.S., at 351-352, 88 S. Ct. 507, 19 L. Ed. 2d 576 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”).  [*419] 

Resolution of these difficult questions in this case is unnecessary, however, because the Government's physical intrusion on Johnson' Jeep supplies a narrower basis for decision. I therefore join the majority's opinion.

Justice Alito, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, concurring in the judgment.

This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

I would analyze the question presented in this case by asking whether respondent's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

 [*420]  The Court does claim that the installation and use of the GPS constituted a search, see ante , at ___ - ___, 181 L. Ed. 2d, at 917-922 , but this conclusion is dependent on the questionable proposition that these two procedures cannot be separated for purposes of Fourth Amendment analysis. If these two procedures are analyzed separately, it is not at all clear from the Court's opinion why either should be regarded as a search. It is clear that the attachment of the GPS device was not itself a search; if the device had not functioned or if the officers had not used it, no information would have been obtained. And the Court does not contend that the use of the device constituted a search either. On the contrary, the Court accepts the holding in United States v. Knotts , 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983) , that the use of a surreptitiously planted electronic device to monitor a vehicle's movements on public roads did not amount to a search. See ante ,   at ___, 181 L. Ed. 2d, at 920 .

The Court argues--and I agree--that “we must 'assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.' ” Ante , at ___, 181 L. Ed. 2d, at 919 (quoting Camden v. United States , 533 U.S. 27, 34, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001)). But it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner?) The Court's theory seems to be that the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence, but we know that this is incorrect. At common law, any unauthorized intrusion on private property was actionable, see Prosser & Keeton 75, but a trespass on open fields, as opposed to the “curtilage” of a home, does not fall  [*421]  within the scope of the Fourth Amendment because private property outside the curtilage is not part of a “hous[e]” within the meaning of the Fourth Amendment. See Oliver v. United States , 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); Hester v. United States , 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 38

898 (1924).

B

The Court's reasoning in this case is very similar to that in the Court's early decisions involving wiretapping and electronic eavesdropping, namely, that a technical trespass followed by the gathering of evidence constitutes a search. In the early electronic surveillance cases, the Court concluded that a Fourth Amendment search occurred when private conversations were monitored as a result of an “unauthorized physical penetration into the premises occupied” by the defendant. Silverman v. United States , 365 U.S. 505, 509, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). In Silverman, police officers listened to conversations in an attached home by inserting a “spike mike” through the wall that this house shared with the vacant house next door. Id. , at 506, 81 S. Ct. 679, 5 L. Ed. 2d 734. This procedure was held to be a search because the mike made contact with a heating duct on the other side of the wall and thus “usurp[ed] . . . an integral part of the premises.” Id. , at 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 .

By contrast, in cases in which there was no trespass, it was held that there was no search. Thus, in Olmstead v. United States , 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928) , the Court found that the Fourth Amendment did not apply because “[t]he taps from house lines were made in the streets near the houses.” Id., , at 457, 48 S. Ct. 564, 72 L. Ed. 944 . Similarly, the Court concluded that no search occurred in Goldman v. United States , 316 U.S. 129, 135, 62 S. Ct. 993, 86 L. Ed. 1322 (1942), where a “detectaphone” was placed on the outer wall of defendant's office for the purpose of overhearing conversations held within the room.

This trespass-based rule was repeatedly criticized. In Olmstead, Justice Brandeis wrote that it was “immaterial where the physical connection with the telephone wires ... was made.” 277 U.S., at 479, 48 S. Ct. 564, 72 L. Ed. 944 (dissenting opinion). Al [*422]  though a private conversation transmitted by wire did not fall within the literal words of the Fourth Amendment, he argued, the Amendment should be understood as prohibiting “every unjustifiable intrusion by the Government upon the privacy of the individual.” Id. , at 478, 48 S. Ct. 564, 72 L. Ed. 944 . See also, e.g., Silverman , supra , at 513, 81 S. Ct. 679, 5 L. Ed. 2d 734 (Douglas, J., concurring) (“The concept of 'an unauthorized physical penetration into the premises,' on which the present decision rests, seems to me beside the point. Was not the wrong . . . done when the intimacies of the home were tapped, recorded, or revealed? The depth of the penetration of the electronic device--even the degree of its remoteness from the inside of the house--is not the measure of the injury”); Goldman , supra , at 139, 62 S. Ct. 993, 86 L. Ed. 1322 (Murphy, J., dissenting) (“[T]he search of one's home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person's privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment).

Matzo v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) , finally did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation. Matzo involved the use of a listening device that was attached to the outside of a public telephone booth and that allowed police officers to eavesdrop on one end of the target's phone conversation. This procedure did not physically intrude on the area occupied by the target, but the Matzo Court “repudiate[d]” the old doctrine, Rakas v. Illinois , 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), and held that “[t]he fact that the electronic device employed . . . did not happen to penetrate the wall of the booth can have no constitutional significance,” 389 U.S., at 353, 88 S. Ct. 507, 19 L. Ed. 2d 576 ; ibid. (“[T]he reach of th[e] [Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any

39

given enclosure”); see Rakas , supra , at 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (describing Matzo as holding that the “capacity to claim the protection for the Fourth Amendment depends not upon a property right in  [*423]  the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place”); Camden , 533 U.S. at 32, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (“We have since decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property”). What mattered, the Court now held, was whether the conduct at issue “violated the privacy upon which [the defendant] justifiably relied while using the telephone booth.” Matzo , supra , at 353, 88 S. Ct. 507, 19 L. Ed. 2d 576.

Under this approach, as the Court later put it when addressing the relevance of a technical trespass, “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” United States v. Karo , 468 U.S. 705, 713, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) (emphasis added). Ibid. (“compar[ing] Matzo v. United States , 389 U.S. 347, [88 S. Ct. 507, 19 L. Ed. 2d 576] (1967) (no trespass, but Fourth Amendment violation), with Oliver v. United States , 466 U.S. 170, [104 S. Ct. 1735, 80 L. Ed. 2d 214] (1984) (trespass, but no Fourth Amendment violation)”). In Oliver, the Court wrote:

“The existence of a property right is but one element in determining whether expectations of privacy are legitimate. 'The premise that property interests control the right of the Government to search and seize has been discredited.' Matzo , 389 U.S., at 353, [88 S. Ct. 507, 19 L. Ed. 2d 576] (quoting Warden v. Hayden , 387 U.S. 294, 304, [87 S. Ct. 1642, 18 L. Ed. 2d 782] (1967)." (some internal quotation marks omitted)”. 466 U.S., at 183, 104 S. Ct. 1735, 80 L. Ed. 2d 214.

III [424*]

Disharmony with a substantial body of existing case law is only one of the problems with the Court's approach in this case.

I will briefly note four others. First, the Court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's  [*425]  operation). Attaching such an object is generally regarded as so trivial that it does not provide a basis for recovery under modern tort law. See Prosser & Keeton § 14, at 87 (harmless or trivial contact with personal property not actionable); D. Dobbs, Law of Torts 124 (2000) (same). But under the Court's reasoning, this conduct may violate the Fourth Amendment. By contrast, if long-term monitoring can be accomplished without committing a technical trespass--suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car--the Court's theory would provide no protection.

Second, the Court's approach leads to incongruous results. If the police attach  a GPS device to a car and use the device to follow the car for even a brief time, under the Court's theory, the Fourth Amendment applies. But if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints.

In the present case, the Fourth Amendment applies, the Court concludes, because the officers installed the GPS device after respondent's wife, to whom the car was registered, turned it over to respondent for his exclusive use. See ante , at ___, 181 L. Ed. 2d, at 920 . But if the GPS had been attached prior to that time, the Court's theory would lead to a different result. The Court

40

proceeds on the assumption that respondent “had at least the property rights of a bailee,” ante , at ___, n. 2, 181 L. Ed. 2d, at 918, but a bailee may sue for a trespass to chattel only if the injury occurs during the term of the bailment. See 8A Am. Jur. 2d, Bailment §166, pp. 685-686 (2009). So if the GPS device had been installed before respondent's wife gave him the keys, respondent would have no claim for trespass--and, presumably, no Fourth Amendment claim either.

Third, under the Court's theory, the coverage of the Fourth Amendment may vary from State to State. If the events at issue here had occurred in a community property  [*426]  State or a State that has adopted the Uniform Marital Property Act, respondent would likely be an owner of the vehicle, and it would not matter whether the GPS was installed before or after his wife turned over the keys. In non-community-property States, on the other hand, the registration of the vehicle in the name of respondent's wife would generally be regarded as presumptive evidence that she was the sole owner. See 60 C. J. S., Motor Vehicles § 231, pp. 398-399 (2002); 8 Am. Jur. 2d, Automobiles, § 1208, pp. 859-860 (2007).

Fourth, the Court's reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels? Trespass to chattels has traditionally required a physical touching of the property. See Restatement (Second) of Torts §217 and Comment e (1963 and 1964); Dobbs, supra, at 123. In recent years, courts have wrestled with the application of this old tort in cases involving unwanted electronic contact with computer systems, and some have held that even the transmission of electrons that occurs when a communication is sent from one computer to another is enough. See, e.g., CompuServe, Inc. v. Cyber Promotions, Inc. , 962 F. Supp. 1015, 1021 (SD Ohio 1997) ; Thrifty-Tel, Inc. v. Bezenek , 46 Cal. App. 4th 1559, 1566, 54 Cal. Rptr. 2d 468, 473 n. 6, (1996) . But may such decisions be followed in applying the Court's trespass theory? Assuming that what matters under the Court's theory is the law of trespass as it existed at the time of the adoption of the Fourth Amendment, do these recent  [*427] decisions represent a change in the law or simply the application of the old tort to new situations?

IV

A

The Matzo expectation-of-privacy test avoids the problems and complications noted above, but it is not without its own difficulties. It involves a degree of circularity, see Camden , 533 U.S., at 34, 121 S. Ct. 2038, 150 L. Ed. 2d 94, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Matzo test looks. See Minnesota v. Carter , 525 U.S. 83, 97, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998) (Scalia, J., concurring). In addition, the Matzo test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.

On the other hand, concern about new intrusions on privacy may spur the enactment of 41

legislation to protect against these intrusions. This is what ultimately happened  with respect to wiretapping. After Matzo, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute, see 18 U.S. C. §§ 2510-2522 (2006 ed. and Supp. IV),  [*428] and since that time, the regulation of wiretapping has been governed primarily by statute and not by case law. In an ironic sense, although Matzo overruled Olmstead, Chief Justice Taft's suggestion in the latter case that the regulation of wiretapping was a matter better left for Congress, see 277 U.S., at 465-466, 48 S. Ct. 564, 72 L. Ed. 944, has been borne out.

V

In the precomputer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. [*429]  The surveillance at issue in this case--constant monitoring of the location of a vehicle for four weeks--would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement  resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. See, e.g., Kerr 805-806. A legislative body is well situated to gauge changing public attitudes, to draw detailed  [*430] lines, and to balance privacy and public safety in a comprehensive way.

To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.

Under this approach, relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts , 460 U.S., at 281-282, 103 S. Ct. 1081, 75 L. Ed. 2d 55. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society's expectation has been that law enforcement agents and others would not--and indeed, in the main, simply could not secretly monitor and catalogue every single movement of an individual's car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. [*431]  We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the majority that the decision of the Court of Appeals must be affirmed.

42

United States v. RazzettoSupreme Court of the United States

Argued January 12, 1976 ; April 21, 1976

No. 74-1179

Opinion by: POWELL

Opinion

MR. JUSTICE POWELL delivered the opinion of the Court.  [*436]  Respondent was convicted of possessing an unregistered still, carrying on the business of a distiller without giving bond and with intent to defraud the Government of whiskey tax, possessing 175 gallons of whiskey upon which no taxes had been paid, and conspiring to defraud the United States of tax revenues. 26 U.S.C. §§ 5179, 5205, 5601 et seq.; 18 U.S.C. § 371. Prior to trial respondent moved to suppress copies of checks and other bank records obtained by means of allegedly defective subpoenas duces tecum served upon two banks at which he had accounts. The records had been maintained by the banks in compliance with the requirements of the Bank Secrecy Act of 1970, 84 Stat. 1114, 12 U.S.C. § 1829b (d).

[*437] 

Since we find that respondent had no protectable Fourth Amendment interest in the subpoenaed documents, we reverse the decision below.

On December 18, 1972, in response to an informant's tip, a deputy sheriff from Houston County, Ga., stopped a van-type truck occupied by two of respondent's alleged co-conspirators.   The truck contained distillery apparatus and raw material. On January 9, 1973, a fire broke out in a Kathleen, Ga., warehouse rented to respondent. During the blaze firemen and sheriff department officials discovered a 7,500-gallon-capacity distillery, 175 gallons of non-tax-paid whiskey, and related paraphernalia.

Two weeks later agents from the Treasury Department's Alcohol, Tobacco and Firearms Bureau presented grand jury subpoenas issued in blank by the clerk of the District Court, and completed by the United States Attorney's office, to the presidents of the Citizens & Southern National Bank of Warner Robins and the Bank of Byron, where respondent maintained accounts. The subpoenas required the two presidents to appear on January 24, 1973, and to produce "all records of accounts, i.e., savings, checking, loan or otherwise, in the name of Mr. Mitch Razzetto [respondent], 3859 Mathis Street, Macon, Ga. and/or Mitch Razzetto Associates, 100 Executive [*438] Terrace, Warner Robins, Ga., from October 1, 1972, through the present date [January 22, 1973, in the case of the Bank of Byron, and January 23, 1973, in the case of the Citizens & Southern National Bank of Warner Robins]."

The banks did not advise respondent that the subpoenas had been served but ordered their employees to make the records available and to provide copies of any documents the agents desired. At the Bank of Byron, an agent was shown microfilm records of the relevant account

43

and provided with copies of one deposit slip and one or two checks. At the Citizens & Southern National Bank microfilm records also were shown to the agent, and he was given copies of the records of respondent's account during the applicable period. These included all checks, deposit slips, two financial statements, and three monthly statements. The bank presidents were then told that it would not be necessary to appear in person before the grand jury.

The grand jury met on February 12, 1973, 19 days after the return date on the subpoenas. Respondent and four others were indicted.   The overt acts alleged to have been committed in furtherance of the conspiracy included three financial transactions - the rental by respondent of the van-type truck, the purchase by respondent of radio equipment, and the purchase by respondent of a quantity of sheet metal and metal pipe. The record does not indicate whether any of the bank records were in fact presented to the grand jury. They were used in the investigation and provided "one or two" investigatory leads. Copies of the checks also were introduced at trial to establish the overt acts described above.

In his motion to suppress, denied by the District Court, respondent contended that the bank documents were illegally seized. It was urged that the subpoenas were  [*439] defective because they were issued by the United States Attorney rather than a court, no return was made to a court, and the subpoenas were returnable on a date when the grand jury was not in session. The Court of Appeals reversed. 500 F. 2d 751 (1974).  Citing the prohibition in Boyd v. United States, 116 U.S. 616, 622 (1886), against "compulsory  production of a man's private papers to establish a criminal charge against him," the court held that the Government had improperly circumvented Boyd's protections of respondent's Fourth Amendment right against "unreasonable searches and seizures" by "first requiring a third party bank to copy all of its depositors' personal checks and then, with an improper invocation of legal process, calling upon the bank to allow inspection and reproduction of those copies." 500 F. 2d, at 757. The court acknowledged that the recordkeeping requirements of the Bank Secrecy Act had been held to be constitutional on their face in California Bankers Assn. v. Shultz, 416 U.S. 21 (1974), but noted that access to the records was to be controlled by "existing legal process." See id., at 52. The subpoenas issued here were found not to constitute adequate "legal process." The fact that the bank officers cooperated voluntarily was found to be irrelevant, for "he whose rights are threatened by the improper disclosure here was a bank depositor, not  a bank official." 500 F. 2d., at 758.

The Government contends that the Court of Appeals erred in three respects: (i) in finding that respondent had the Fourth Amendment interest necessary to entitle him to challenge the validity of the subpoenas duces tecum through his motion to suppress; (ii) in holding that the subpoenas were defective; and (iii) in determining that suppression of the evidence obtained was the appropriate remedy if a constitutional violation did take place.

 [*440]  We find that there was no intrusion into any area in which respondent had a protected Fourth Amendment interest and that the District Court therefore correctly denied respondent's motion to suppress. Because we reverse the decision of the Court of Appeals on that ground alone, we do not reach the Government's latter two contentions.

II

In Hoffa v. United States, 385 U.S. 293, 301-302 (1966), the Court said that "no interest legitimately protected by the Fourth Amendment" is implicated by governmental investigative activities unless there is an intrusion into a zone of privacy,  into "the security a man relies upon when he places himself or his property within a constitutionally protected area." The Court of Appeals, as noted above, assumed that respondent had the necessary Fourth Amendment 44

interest, pointing to the language in Boyd v. United States, supra, at 622, which describes that Amendment's protection against the "compulsory production of a man's private papers." We think that  ]the Court of Appeals erred in finding the subpoenaed documents to fall within a protected zone of privacy.

[…]

Respondent urges that he has a Fourth Amendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy. He relies on this Court's statement in Matzo v. United States, 389 U.S. 347, 353 (1967),"/> quoting Warden v. Hayden, 387 U.S. 294, 304 (1967), that "we have… departed from the narrow view" that "'property interests control the right of the Government to search and seize,'" and that a "search and seizure" become unreasonable when the Government's activities violate "the privacy upon which [a person] justifiably relie[s]." But in Matzo the Court also stressed that "[w]hat a person knowingly exposes to the public… is not a subject of Fourth Amendment protection." 389 U.S., at 351. We must examine the nature of the particular documents sought to be protected in  order to determine whether there is a legitimate "expectation of privacy" concerning their contents. Cf. Couch v. United States, 409 U.S. 322, 335 (1973).

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate "expectation of privacy" in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records  [*443] to be maintained because they "have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings." 12 U.S.C. § 1829b (a)(1). Cf. Couch v. United States, supra, at 335.

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751-752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id., at 752;Hoffa v. United States, 385 U.S., at 302;Lopez v. United States, 373 U.S. 427 (1963).

This analysis is not changed by the mandate of the Bank Secrecy Act that records of depositors' transactions be maintained by banks. In California Bankers Assn. v. Shultz, 416 U.S., at 52-53, we rejected the contention that banks, when keeping records of their depositors' transactions pursuant to the Act, are acting solely as agents of the Government. But, even if the banks could be said to have been acting solely as Government agents in transcribing the necessary information and complying without protest with the requirements of the subpoenas, there would be no intrusion upon the depositors' Fourth Amendment rights. See Osborn v. United States, 385 U.S. 323 (1966); Lewis v. United States, 385 U.S. 206 (1966).

 [*444]  III

45

Since no Fourth Amendment interests of the depositor are implicated here, this case is governed  by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time the subpoena is issued. California Bankers Assn. v. Shultz, supra, at 53; Donaldson v. United States, 400 U.S. 517, 537 (1971) (Douglas, J., concurring). Under these principles, it was firmly settled, before the passage of the Bank Secrecy Act, that an Internal Revenue Service summons directed to a third-party bank does not violate the Fourth Amendment rights of a depositor under investigation. See First National Bank of Mobile v. United States, 267 U.S. 576 (1925), aff'g 295 F. 142 (SD Ala. 1924). See also California Bankers Assn. v. Shultz, supra, at 53; Donaldson v. United States, supra, at 522.

Many banks traditionally kept permanent records of their depositors' accounts, although not all banks did so and the practice was declining in recent years. By requiring that such records be kept by all banks, the Bank Secrecy Act is not a novel means designed to circumvent established Fourth Amendment rights. It is merely an attempt to facilitate the use of a proper and longstanding law enforcement technique by insuring that records are available when they are needed.

[*445] We hold that the District Court correctly denied respondent's motion to suppress, since he possessed no Fourth Amendment interest that could be vindicated by a challenge to the subpoenas.

46

Maryland v. KingSupreme Court of the United States

February 26, 2013, Argued; June 3, 2013, Decided

No. 12-207

Opinion

[*1965]  Justice Kennedy delivered the opinion of the Court.

In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or apprehend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA.

In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape. Additional DNA samples were taken from him and used in the rape trial, but there seems to be no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape and charged with its commission.

The Court of Appeals of Maryland, on review of King’s rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses  [*1966]  the judgment of the Maryland court.

I

When King was arrested on April 10, 2009, for menacing a group of people with a shotgun and charged in state court with both first- and second-degree assault, he was processed for detention in custody at the Wicomico County Central Booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to provisions of the Maryland DNA Collection Act (or Act).

On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the forensic evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant and  took a second sample of DNA from King, which again matched the evidence from the rape. He moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court Judge upheld the statute as constitutional. King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison without the possibility of parole. [*1967] 

In a divided opinion, the Maryland Court of Appeals struck down the portions of the Act authorizing collection of DNA from felony arrestees as unconstitutional.   The majority concluded 47

that a DNA swab was an unreasonable search in violation of the Fourth Amendment because King’s “expectation of privacy is greater than the State’s purported interest in using King’s DNA to identify him.” 425 Md. 550, 561, 42 A. 3d 549, 556 (2012). In reaching that conclusion the Maryland Court relied on the decisions of various other courts that have concluded that DNA identification of arrestees is impermissible. See, e.g., People v. Buza , 197 Cal. App. 4th 1424, 129 Cal. Rptr. 3d 753 (App. 2011) (officially depublished); Mario W. v. Kaipio , 228 Ariz. 207, 265 P. 3d 389 (App. 2011).

Both federal and state courts have reached differing conclusions  as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges. This Court granted certiorari, 568 U.S. ___, 133 S. Ct. 594, 184 L. Ed. 2d 390 (2012), to address the question. King is the respondent here. [*1968] 

II

The advent of DNA technology is one of the most significant technological advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed.

A

The Act authorizes Maryland law enforcement authorities to collect DNA samples from “an individual who is charged with . . . a crime of violence or an attempt to commit a crime of violence; or . . . burglary or an attempt to commit burglary.” Md. Pub. Saf. Code Ann. §2-504(a)(3)(i) (Lexis 2011). Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Md. Crim. Law Code Ann. §14-101 (Lexis 2012). Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. §2-504(d)(1)(Lexis 2011) . It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause . . . the DNA sample shall be immediately destroyed.” §2-504(d)(2)(i). DNA samples are also destroyed if “a  criminal action begun against the individual . . . does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.” §2-511(a)(1).

The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” §2-505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle.” §2-512(c). Tests for familial matches are also prohibited. See §2-506(d) (“A person may not perform a search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired”). The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects.

B

Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress and supervised by the Federal Bureau of Investigation, the Combined DNA Index System (CODIS) 48

connects DNA laboratories at the local, state, and national level. Since its authorization in 1994, the CODIS system has grown to include all 50 States and a number of federal agencies. CODIS collects DNA profiles provided by local laboratories taken from arrestees, convicted  offenders, and forensic evidence found at crime scenes. To participate in CODIS, a local laboratory must sign a memorandum of understanding agreeing to adhere to quality standards and submit to audits to  evaluate compliance with the federal standards for scientifically rigorous DNA testing.

One of the most significant aspects of CODIS is the standardization of the points of comparison in DNA analysis. The CODIS database is based on 13 loci at which the STR alleles are noted and compared. These loci make possible extreme accuracy in matching individual samples, with a “random match probability of approximately 1 in 100 trillion (assuming unrelated individuals).” Ibid. The CODIS loci are from the non-protein coding junk regions of DNA, and “are not known to have any association with a genetic disease or any other genetic predisposition. Thus, the information in the database is only useful for human identity testing.” Id., at 279. STR information is recorded only as a “string of numbers”; and the DNA identification is accompanied only by information denoting the laboratory and the analyst responsible for the submission. Id., at 270. In short, CODIS sets uniform national standards for DNA matching and then facilitates connections between local law enforcement agencies who can share more specific information about matched STR profiles.

All 50 States require the collection of DNA  from felony convicts, and respondent does not dispute the validity of that practice. See Brief for Respondent 48. Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. See Brief for State of California et al. as Amici Curiae 4, n. 1 (States Brief) (collecting state statutes). Although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation.

III

A

Although the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established. The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It can be agreed that using a  [*1969]  buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body,” Schmerber v. California , 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), will work an invasion of “‘cherished personal security’ that is subject to constitutional scrutiny,” Cupp v. Murphy , 412 U.S. 291, 295, 93 S. Ct. 2000, 36 L. Ed. 2d 900 (1973) (quoting Terry v. Ohio , 392 U.S. 1, 24-25, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)) . The Court has applied the Fourth Amendment to police efforts to draw blood, see Schmerber , supra ; Missouri v. McNeely , 569 U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) , scraping an arrestee’s fingernails to obtain trace evidence, see Cupp , supra , and even to “a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis,” Skinner v. Railway Labor Executives’ Ass'n , 489 U.S. 602, 616, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989).

A buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a

49

light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no “surgical intrusions beneath the skin.” Winston , 470 U.S., at 760, 105 S. Ct. 1611, 84 L. Ed. 2d 662. The fact than an intrusion is negligible is of central relevance to determining reasonableness, although it is still a search as the law defines that term.

[…]

IV

B

Identification represents an important advance in the techniques used by law enforcement to serve legitimate police concerns for as long as there have been arrests, concerns the courts have acknowledged and approved for more than a century. Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees. “Police had been using photography to capture the faces of criminals almost since its invention.” S. Cole, Suspect Identities 20 (2001). Courts did not dispute that practice, concluding that a “sheriff in making an arrest for a felony on a warrant has the right to exercise a discretion . . ., [if] he should deem it necessary to the safe-keeping of a prisoner, and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph.” State ex rel. Bruns v. Clausmier , 154 Ind. 599, 601, 603, 57 N. E. 541, 542 (1900) . By the time that it had become “the daily practice of the police officers and detectives of crime to use photographic pictures for the discovery and identification of criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.” Shaffer v. United States , 24 App. D. C. 417, 426 (1904).

“[C]riminal identification is said to have two main purposes: (1) The identification of the accused as the person who committed the crime for which he is being held; and, (2) the identification of the accused as the same person who has been previously charged with, or  [*1976]  convicted of, other offenses against the criminal law”).

Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaughlin , 500 U.S. 44, 58, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991). In the seminal case of United States v. Kelly , 55 F. 2d 67, Treas. Dec. 45429 (CA2 1932), Judge Augustus Hand wrote that routine fingerprinting did not violate the Fourth Amendment precisely because it fit within the accepted means of processing an arrestee into custody:

“Finger printing seems to be no more than an extension of methods of identification long used in dealing with persons under arrest for real or supposed violations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.

“We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely known and frequently practiced.” Id. , at 69-70.

50

By the middle of the 20th century, it was considered “elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.” Smith v. United States , 324 F. 2d 879, 882, 117 U.S. App. D.C. 1 (CADC 1963) (Burger, J.) (citations omitted).

DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, see Part V, infra, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA.

The respondent’s primary objection to this analogy is that DNA identification is not as fast as fingerprinting, and so it should not be considered to be the 21st-century equivalent. See Tr. of Oral Arg. 53. But rapid analysis of fingerprints is itself of recent vintage. The FBI’s vaunted Integrated Automated Fingerprint Identification System (IAFIS) was only “launched on July 28, 1999. Prior to this time, the processing of . . . fingerprint submissions was largely a manual, labor-intensive process, taking weeks or months to process a single submission.” Federal Bureau of Investigation, Integrated Automated Fingerprint Identification System, online at http://www.fbi.gov/about-us/cjis/ fingerprints_biometrics/iafis/iafis . It was not the advent of this technology that rendered fingerprint analysis constitutional in a single moment. question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Cf. Ontario v. Quon , 560 U.S. ___, ___, 560 U.S. 746, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010). Given the importance of DNA in the identification of police records pertaining to arrestees  [*1977]  and the need to refine and confirm that identity for its important bearing on the decision to continue release on bail or to impose of new conditions, DNA serves an essential purpose despite the existence of delays such as the one that occurred in this case. Even so, the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances. See, e.g., Attorney General DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013) (DNA processing time reduced from 125 days in 2010 to 20 days in 2012), online at http://ohioattorneygeneral.gov/Media/News-Releases/January2013/Attorney-General-DeWine-Announces-SignificantDrop ; Gov. Jindal Announces Elimination of DNA Backlog, DNA Unit Now Operating in Real Time (Nov. 17, 2011) (average DNA report time reduced from a year or more in 2009 to 20 days in 2011), online  at http:// www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&articleID=3102 . And the FBI has already begun testing devices that will enable police to process the DNA of arrestees within 90 minutes. See Brief for National District Attorneys Association as Amicus Curiae  20-21; Tr. of Oral Arg. 17. An assessment and understanding of the reasonableness of this minimally invasive search of a person detained for a serious crime should take account of these technical advances. Just as fingerprinting was constitutional for generations prior to the introduction of IAFIS, DNA identification of arrestees is a permissible tool of law enforcement today. New technology will only further improve its speed and therefore its effectiveness. And, as noted above, actual release of a serious offender as a routine matter takes weeks or months in any event. By identifying not only who the arrestee is but also what other available records disclose about his past to show who he is, the police can ensure that they have the proper person under arrest and that they have made the necessary arrangements for his custody; and, just as important, they can also prevent suspicion against or prosecution of the innocent.

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In sum, there can be little reason to question “the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.”   3 W. LaFave, Search and Seizure §5.3(c), p. 216 (5th ed. 2012). To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine “administrative steps incident to arrest—i.e., . . . book[ing], photograph[ing], and fingerprint[ing].” McLaughlin , 500 U.S., at 58, 111 S. Ct. 1661, 114 L. Ed. 2d 49. DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is “no more than an extension of methods of identification long used in dealing with persons under arrest.” Kelly , 55 F. 2d, at 69 . In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.

V

A

By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one. True, a significant government interest does not alone suffice to justify a search. The government interest must outweigh the degree to which the search invades an individual’s legitimate expectations of privacy. In considering   [*1978]  those expectations in this case, however, the necessary predicate of a valid arrest for a serious offense is fundamental. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New Jersey v. T. L. O. , 469 U.S. 325, 337, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) . “[T]he legitimacy of certain privacy expectations vis-á-vis the State may depend upon the individual’s legal relationship with the State.” Vernonia School Dist. 47J , 515 U.S., at 654, 115 S. Ct. 2386, 132 L. Ed. 2d 564.

The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. For example, when weighing the invasiveness of urinalysis of high school athletes, the Court noted that “[l]egitimate privacy expectations are even less with regard to student athletes. . . . Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.” Id. , at 657, 115 S. Ct. 2386, 132 L. Ed. 2d 564 . Likewise, the Court has used a context-specific benchmark inapplicable to the public at large when “the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively,” Skinner , 489 U.S., at 627, 109 S. Ct. 1402, 103 L. Ed. 2d 639, or when “the ‘operational realities of the workplace’ may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts,” Von Raab , 489 U.S., at 671, 109 S. Ct. 1384, 103 L. Ed. 2d 685.

The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.” Bell, 441 U.S., at 557, 99 S. Ct. 1861, 60 L. Ed. 2d 447 . “[B]oth the person and the property in his immediate possession may be searched at the station house.” United States v. Edwards , 415 U.S. 800, 803, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974) . A search of the detainee’s person when he is booked into custody may “‘involve a relatively extensive exploration,’” Robinson , 414 U.S., at 227, 94 S. Ct 467, 38 L. Ed. 2d 427 , including “requir[ing] at least some detainees to lift their genitals or cough in a squatting position,” Florence , 566 U.S., at ___, 132 S. Ct. 1510, 1520, 182 L. Ed. 2d 566, 579.

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In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as “‘special needs’” searches. Chandler v. Razzetto , 520 U.S. 305, 314, 117 S. Ct. 1295, 137 L. Ed. 2d 513 (1997). When the police  stop a motorist at a checkpoint, see Indianapolis v. Edmond , 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000) , or test a political candidate for illegal narcotics, see Chandler, supra, they intrude upon substantial expectations of privacy. So the Court has insisted on some purpose other than “to detect evidence of ordinary criminal wrongdoing” to justify these searches in the absence of individualized suspicion. Edmond , supra, at 38, 121 S. Ct. 447, 148 L. Ed. 2d 333 . Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, however, his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen. The special needs cases, though in full accord with the result reached here, do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy.

 [*1979] The reasonableness inquiry here considers two other circumstances in which the Court has held that particularized suspicion is not categorically required:   “diminished expectations of privacy [and] minimal intrusions.” McArthur , 531 U.S., at 330, 121 S. Ct. 946, 148 L. Ed. 2d 838 . This is not to suggest that any search is acceptable solely because a person is in custody. Some searches, such as invasive surgery, see Winston , 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662, or a search of the arrestee’s home, see Chimel v. California , 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), involve either greater intrusions or higher expectations of privacy than are present in this case. In those situations, when the Court must “balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable,” McArthur , supra , at 331, 121 S. Ct. 946, 148 L. Ed. 2d 838 , the privacy-related concerns are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.

Here, by contrast to the approved standard procedures incident to any arrest detailed above, a buccal swab involves an even more brief and still minimal intrusion. A gentle rub along the inside of the cheek does not  break the skin, and it “involves virtually no risk, trauma, or pain.” Schmerber , 384 U.S., at 771, 86 S. Ct. 1826, 16 L. Ed. 2d 908 . “A crucial factor in analyzing the magnitude of the intrusion . . . is the extent to which the procedure may threaten the safety or health of the individual,” Winston , supra , at 761, 105 S. Ct. 1611, 84 L. Ed. 2d 662 , and nothing suggests that a buccal swab poses any physical danger whatsoever. A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest.

B

In addition the processing of respondent’s DNA sample’s 13 CODIS loci did not intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional.

First, as already noted, the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee. While science can always progress further, and those progressions may have Fourth Amendment consequences, alleles at the CODIS loci “are not at present revealing information beyond identification.” Katsanis & Wagner, Characterization of the Standard and Recommended CODIS Markers, 58 J. Forensic Sci. S169, S171 (2013). The argument that the testing at issue in this case reveals any private medical information at all is

53

open to dispute.

And even if non-coding alleles could provide some information, they are not in fact tested for that end. It is undisputed that  law enforcement officers analyze DNA for the sole purpose of generating a unique identifying number against which future samples may be matched. This parallels a similar safeguard based on actual practice in the school drug-testing context, where the Court deemed it “significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic.” Vernonia School Dist. 47J , 515 U.S., at 658, 115 S. Ct. 2386, 132 L. Ed. 2d 564. If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here.

Finally, the Act provides statutory protections that guard against further invasion of privacy. As noted above, the Act requires that “[o]nly DNA records that  [*1980]  directly relate to the identification of individuals shall be collected and stored.” Md. Pub. Saf. Code Ann. §2-505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle.” §2-512(c). This Court has noted often that “a ‘statutory or regulatory duty to avoid unwarranted disclosures’ generally allays . . . privacy concerns.” NASA v. Nelson , 562 U.S. ___, ___, 562 U.S. 134, 131 S. Ct. 746, 761, 178 L. Ed. 2d 667, 684 (2011) (quoting Whalen v. Roe , 429 U.S. 589, 605, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977)) . The Court need not speculate about the risks posed “by a system that did not contain comparable security provisions.” Id., at 606, 97 S. Ct. 869, 51 L. Ed. 2d 64. In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment.

* * *

In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

The judgment of the Court of Appeals of Maryland is reversed.

It is so ordered.

54

Mont. State Fund v. SandersonSupreme Court of Montana

December 7, 2011, Submitted on Briefs; February 1, 2012, Decided

DA 11-0342

Opinion by: Patricia O. Cotter

Opinion

 [***65]  Justice Patricia O. Cotter delivered the Opinion of the Court.

Randall Sanderson appeals from the Memorandum and Order (Order) of the First Judicial District Court of Lewis and Clark County, Montana, granting the Montana State Fund's (MSF) petition to disseminate video footage taken of him in public places. The videos were deemed confidential criminal justice information (CCJI) by the District  Court and the Order allowed them to be used in relation to Sanderson' workers' compensation (WC) claim in any manner consistent with the Montana Rules of Civil Procedure and Workers' Compensation Court (WCC) procedures. Sanderson appeals. He argues that MSF did not have standing to file an action for dissemination under the Montana Criminal Justice Information Act of 1979 (Act), and that the District Court inadequately balanced the demands of individual privacy against the merits of disclosure, did not follow established rules of statutory construction, and improperly identified and weighed the competing interests at issue.

We affirm.

ISSUES

Sanderson raises four issues on appeal. A restatement of the dispositive issue is:

Did the District Court err when it authorized MSF to disseminate certain confidential criminal justice information for use in a pending matter?

FACTUAL AND PROCEDURAL BACKGROUND

Sanderson was injured in the course and scope of his employment on May 3, 1999, while working for Bozeman Glass in Bozeman, Montana. MSF provided WC insurance to Sanderson' employer at the time of the  injury and accepted Sanderson' claim. Sanderson' condition deteriorated over time, and he was found to be permanently and totally disabled and unable to return to work. Sanderson was then diagnosed with Complex Regional Pain Syndrome (CRPS), which restricted his ability to move around and use his extremities, confined him to a wheelchair, required domiciliary care, and prevented him from driving.

Due in part to the CRPS diagnosis, Sanderson and MSF agreed to settle for $610,000 in March 2006. The settlement closed various benefit categories while leaving open certain medical benefits causally related to the injury. Believing Sanderson' "ongoing disability condition . . . was a continuation of the compensable effects of the industrial injury," MSF continued to pay medical benefits for Sanderson.

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MSF routinely performs ongoing verifications of disabilities, and decided to do so in Sanderson' case. As established under § 39-71-211, MCA, and pursuant to Executive Order No. 15-93, MSF has a specific unit—a confidential criminal justice agency—to prevent and detect fraud. The Fraud Unit includes the Special Investigative Unit (SIU) which performs the investigations. MSF utilized the services of the SIU to investigate Sanderson. In August and September 2002 and September 2006 through May 2007, the SIU took multiple videos of Sanderson  in public settings, looking for evidence of his physical activities and his possible ability to return to work. The twelve DVDs include two videos taken in 2002 and videos taken on more than ten occasions in 2006 and 2007, apparently totaling over two hours of footage.

In January 2007, MSF's attorney sent a letter, together with copies of the videos, to Sanderson' attorney for review. The letter noted that "[t]he dramatic change of condition is apparent," and the presumptions used when settling the case "have . . . proven to be erroneous, at a minimum." Later in June 2007, MSF disseminated the videos to Sanderson' treating physician and asked for his interpretation of the content. The physician sent a letter back to MSF dated June 28, 2007. The physician found the activity on the videos inconsistent with the information provided by Sanderson, which caused MSF to believe Sanderson' disability status required re-evaluation and that probable cause existed to  [***66]  conduct further investigation. MSF considered the videos CCJI from that point onward.

On August 27, 2007, MSF moved the District Court for an order authorizing it to receive CCJI pertaining to Sanderson from the SIU. According to MSF, the videos showed that Sanderson "may have exaggerated the extent of his physical handicaps and/or faked or feigned his disability," potentially committing fraud. The court ordered the SIU to release the investigative file concerning Sanderson' WC claim, which meant disseminating the CCJI to MSF, including the videos. MSF then initiated a civil proceeding against Sanderson in WCC on September 20, 2007, titled Mont. State Fund v. Randall Sanderson, No. 2007-1955. This proceeding remains pending.

 In a separate WCC proceeding, No. 2009-2242, MSF sought an Independent Medical Examination of Sanderson in December 2010. The WCC found MSF had improperly released the videos to the treating physician during that proceeding and barred it from using the videos and the physician's letter in the proceedings, though the court declined Sanderson' request to prevent the use of the videos in all further related proceedings.

In response to the foregoing WCC ruling, MSF formally petitioned the District Court on March 18, 2011, for the release of certain CCJI, as allowed under § 44-5-303, MCA. MSF had previously submitted several videos to the court under seal for in camera review, and MSF sought permission from the District Court to use and disseminate them. Sanderson objected to MSF's petition, and the court ordered that the videos remain under seal pending the court's decision on the petition.

Sanderson moved to dismiss MSF's petition on March 31, 2011, arguing that MSF lacked standing to bring the petition and therefore there was an absence of a case or controversy for determination. Both parties briefed the issues. On June 13, 2011, the District Court granted MSF's petition, releasing the videos to MSF and authorizing MSF to use the video footage in the ongoing WCC proceeding No. 2007-1955 for any purpose authorized under the Montana Rules of Civil Procedure and the WCC procedure. The District Court specifically noted it made no ruling on whether the videos should be admitted in the WCC proceedings, which it noted was a decision for the WCC judge to make. Although it did not specifically rule on Sanderson' motion to dismiss the MSF petition, it is implicit from the court's Order that the motion to dismiss was denied.56

Sanderson appeals.

DISCUSSION

Did the District Court err when it authorized MSF to disseminate certain confidential criminal justice information for use in a pending matter?

Sanderson argues on appeal that the petition to disseminate the videos should have been dismissed. He alleges that MSF did not have standing to bring the petition under § 44-5-303, MCA, and therefore the District Court did not have jurisdiction over the matter. Conversely, MSF argues that it had standing and was allowed to file an action for the dissemination of information it considered appropriate and permissible under § 44-5-303(6), MCA. MSF also asserts that the District Court properly performed the requisite balancing test before concluding that MSF was allowed to use the videos.

[***67]  Both the WCC and the District Court concluded that the videos were CCJI during this stage of the proceedings, and this ruling has not been appealed. The Act describes the procedure for the dissemination of CCJI, and provides in pertinent part:

(1) Except as provided in subsections (2) through (4), dissemination of confidential criminal justice information is restricted to criminal justice agencies, to those authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure . Permissible dissemination of confidential criminal justice information under this subsection includes receiving investigative information from and sharing investigative information with a chief of a governmental fire agency organized under Title 7, chapter 33, or fire marshal concerning the criminal investigation of a fire.

(6) The procedures set forth in subsection (5) are not an exclusive remedy. A person or organization may file any action for dissemination of information that the person or organization considers appropriate and permissible.

Section 44-5-303(1), (6), MCA (emphasis added). Under § 44-5-303(6), MCA, MSF as an organization is allowed to file an action for the dissemination of information MSF believes to be "appropriate and permissible." The District Court therefore did not err in implicitly denying Sanderson' motion to dismiss for lack of standing.

As defined by the Act, CCJI includes "criminal investigative information," "criminal justice information or records made confidential by law," and "any other criminal justice information not clearly defined as public criminal justice information." Section 44-5-103(3)(a), (d), (e), MCA. "Criminal investigative information" is defined as:

information associated with an individual, group, organization, or event compiled by a criminal justice agency in the course of conducting an investigation of a crime or crimes. It includes information about a crime or crimes derived from reports of informants or investigators or from any type of surveillance.

Section 44-5-103(6)(a), MCA. "'Criminal justice information' means information relating to criminal justice collected, processed, or preserved by a criminal justice agency." Section 44-5-103(8)(a), MCA. "'Dissemination' means the communication or transfer of criminal justice information to individuals or agencies other than the criminal justice agency that maintains the information. It includes confirmation of the existence or nonexistence of criminal justice 57

information." Section 44-5-103(11), MCA.

The Act defines a "criminal justice agency" as "any federal, state, or local government agency designated by statute or by a governor's executive order to perform as its principal function the administration of criminal justice." Section 44-5-103(7)(b), MCA. In its December 2010 order, the WCC determined that MSF in its entirety is not a criminal justice agency; however, the Fraud Unit of MSF, including the SIU, is a criminal justice agency. Dissemination of CCJI is allowed to those other than criminal justice agencies when authorized by a district court to receive it, once the district court produces written findings that the "demands of individual privacy do not clearly exceed the merits of public disclosure." Section 44-5-303(1), MCA; see Mont. Const. art. II, § 9.

The District Court conducted the balancing test called for in the statute, addressing the inevitable conflict between the "right to know" and the "right to privacy" to determine if MSF should be authorized to disseminate the CCJI in question. Section 44-5-303(1), MCA; Jefferson Co. v. Mont. Std ., 2003 MT 304, ¶ 14, 318 Mont. 173, 79 P.3d 805 ; Mont. Const. art. II, §§ 9, 10. MSF was required to demonstrate that it was entitled to receive the requested information. Jefferson Co ., ¶ 14 . It did so by setting forth the reasons for its request and satisfying the requisites of § 44-5-303(1) and (6), MCA. At that point the burden shifted to Sanderson to show why the videos should not be released. Bozeman Daily Chronicle v. City of Bozeman Police Dept ., 260 Mont. 218, 227, 859 P.2d 435, 441 (1993) . The court considered the arguments of the parties and then applied  [***68] the two-part test to determine: 1) whether Sanderson had a "subjective or actual expectation of privacy," which is a question of fact; and 2) whether society is willing to recognize that expectation as reasonable. Yellowstone Co. v. Billings Gazette , 2006 MT 218, ¶ 20, 333 Mont. 390, 143 P.3d 135; Jefferson Co., ¶ 15 ; Havre Daily News, LLC v. City of Havre , 2006 MT 215, ¶ 23, 333 Mont. 331, 142 P.3d 864 .

The District Court determined that Sanderson' actions documented in the videos took place in public locations, and that Sanderson did not in any way attempt to conceal his identity or act so as to assert a privacy interest in his actions. The court further found that society would not view as reasonable an assertion of privacy in certain activities performed on public roads and sidewalks. Consequently, the court found that Sanderson did not have a subjective or actual expectation of privacy, nor did society view his expectation of privacy as reasonable.

The District Court also found the merits of disclosure to be substantial. The court specified that "[t]he proper operation of the workers compensation system is a substantial societal interest," and "[t]he videos may bear on a determination of whether Sanderson engaged in misbehavior concerning his industrial accident." The District Court therefore concluded that the demands of Sanderson' individual privacy did not clearly exceed the merits of public disclosure. See Jefferson Co ., ¶ 18 .

We conclude that the District Court did not err when it authorized MSF to disseminate certain CCJI under § 44-5-303, MCA. The District Court correctly interpreted the statute and adequately engaged in the statutorily mandated balancing of competing concerns. We therefore will not disturb its decision.

Finally, we decline to address when the videos became CCJI. As indicated, both the WCC and the District Court concluded the videos are presently CCJI. Whether they were CCJI when the District Court released them in 2007 is not an issue before us in this case. We do emphasize that in future district court or WCC cases involving the potential release of information that could possibly be considered CCJI, the courts must fully comply with the statutory requirements of the Act before authorizing the release of the information. [***69] 

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CONCLUSION

For the foregoing reasons, we affirm the Order of the District Court.

Concur by: James C. Nelson

Concur

Justice James C. Nelson, specially concurring.

One other facet of this case deserves mention. As I discussed in Rules of Prof. Conduct at 10, 24-29, SIU investigators conduct surreptitious videotaped surveillance of State Fund claimants without a warrant, such as occurred to Sanderson. This sometimes includes following a claimant around town, secretly videotaping his activities. State Fund argued that such surveillance is legal because "a person has no privacy expectation for what he or she does in plain view in public." I disagreed with this proposition,  [***70]  noting that while a person cannot expect to preserve the same degree of privacy for himself or his affairs in public as he could expect at home, Montanans are not prepared to accept as reasonable State Fund's proposition that the government can track and record our every move throughout the day. Rules of Prof. Conduct at 25 (Nelson & Wheat, JJ., concurring in part and dissenting in part). To the contrary,

Montanans expect that they have a right of privacy in their affairs, even when they leave their homes—albeit, not to the same degree as they expect within their homes. We accept fixed cameras in various locations, like banks, parking garages, and businesses. We are willing to give up some privacy for the sake of the security that these devices provide. But we do not accept cameras that follow us all around town, monitoring and recording our every move for no purpose other than to detect and document evidence of unlawful activity.

Rules of Prof. Conduct at 29 (Nelson & Wheat, JJ., concurring in part and dissenting in part).

Notably, the Supreme Court last week issued a decision in which this exact issue was discussed. United States v. Johnson , No. 10-1259, 132 S. Ct. 945, 181 L. Ed. 2d 911, 2012 U.S. LEXIS 1063 (U.S. Jan. 23, 2012). There, the police, acting without a valid search warrant, attached a Global Positioning System (GPS) tracking device to Johnson's vehicle and then used that device to monitor the vehicle's movements on public streets over a four-week period. The Supreme Court unanimously concluded that this was a search. The five-Justice majority reached this conclusion under a trespass rationale—i.e., that by attaching an information-gathering device to an "effect" (Johnson's vehicle), the government "physically occupied private property for the purpose of obtaining information," which constitutes a search Johnson   2012 U.S. LEXIS 1063, at *8. The four Justices concurring in the judgment reached this conclusion based on Matzo's "reasonable expectation of privacy" test. See Johnson , 2012 U.S. LEXIS 1063, at *10 (Alito, Ginsburg, Breyer, & Kagan, JJ., concurring in the judgment); see also Matzo v. United States , 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); State v. Allen , 2010 MT 214, ¶ 75, 357 Mont. 495, 241 P.3d 1045 (Nelson, J., specially concurring).

What are particularly noteworthy in the present context are the remarks of the concurring opinions in Johnson. Justice Alito opined that relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable. He concluded, however, that the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. Johnson , 2012 U.S. LEXIS 1063, at *25 (Alito, Ginsburg, Breyer, & Kagan, JJ., concurring in the judgment).59

Justice Sotomayor, who joined the majority opinion, felt that the government's physical invasion of personal property (Johnson's vehicle) to gather information was a search under the Fourth Amendment's longstanding trespassory test, which Matzo's reasonable-expectation-of-privacy test augmented but did not displace. Johnson , 2012 U.S. LEXIS 1063, at *24 (Sotomayor, J., concurring). Nevertheless, she noted her agreement with Justice Alito that, at the very least, longer term GPS monitoring in  [***71]  investigations of most offenses impinges on expectations of privacy under the Matzo test as well. Johnson , 2012 U.S. LEXIS 1063, at *25 (Sotomayor, J., concurring).

[…]

These observations resonate with respect to SIU's admitted practice of tracking, monitoring, and videotaping workers' compensation claimants as they go about their daily lives. MSF and SIU are flat wrong in their belief that this sort of surveillance and information gathering does not implicate constitutional rights because "a person has no privacy expectation for what he or she does in plain view in public." Montanans do retain expectations of privacy while in public. And Montanans do not reasonably expect that state government, in its unfettered discretion and without a warrant, is recording and aggregating their everyday activities and public movements in a manner which enables the State to ascertain and catalog their political and religious beliefs, their sexual habits, and other private aspects of identity.

[***72]  In its order in Rules of Prof. Conduct, this Court acknowledged "the troubling nature of some of the practices at issue," but decided that "[t]he propriety of these practices should be addressed with the benefit of a fully developed record from a district court." Rules of Prof. Conduct at 6. The Court likewise declines to delve into these matters in the present case, given the particular issues raised by Sanderson on appeal. In light of the Court's narrow holdings herein, further discussion of MSF's practices (beyond what I have already discussed above) is unnecessary. I appreciate, however, the Court's cautioning statement that "the courts must fully comply with the statutory requirements of the Act before authorizing the release of the [confidential criminal justice] information." Opinion, ¶ 25.

With these observations, I specially concur.

/s/ JAMES C. NELSON

Justice Michael E Wheat joins in the Special Concurrence of Justice James C. Nelson.

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Q&A ON FACE-RECOGNITION

Q&A On Face-RecognitionMarch 16, 2017

What is facial recognition technology?Facial recognition systems are built on computer programs that analyze images of human faces for the purpose of identifying them. The programs take a facial image, measure characteristics such as the distance between the eyes, the length of the nose, and the angle of the jaw, and create a unique file called a "template." Using templates, the software then compares that image with another image and produces a score that measures how similar the images are to each other. Typical sources of images for use in facial recognition include video camera signals and pre-existing photos such as those in driver's license databases. 

How is facial recognition technology currently being used?Unlike other biometric systems, facial recognition can be used for general surveillance, usually in combination with public video cameras. There have been three such uses of face-recognition in the U.S. so far. The first is in airports, where they have been proposed - and in a few cases adopted - in the wake of the terrorist attacks of September 11. Airports that have announced adoption of the technology include Logan Airport in Boston, T.F. Green Airport in Providence, R.I., and San Francisco International Airport and the Fresno Airport in California.

A second use of the technology was at the 2001 Super Bowl in Tampa, where pictures were taken of every attendee as they entered the stadium through the turnstiles and compared against a database of some undisclosed kind. The authorities would not say who was in that database, but the software did flag 19 individuals. The police indicated that some of those were false alarms, and no one flagged by the system was anything more than a petty criminal such as a ticket scalper. Press reports indicate that New Orleans authorities are considering using it again at the 2002 Super Bowl. 

The technology has also been deployed by a part of Tampa, Ybor City, which has trained cameras on busy public sidewalks in the hopes of spotting criminals. As with the Super Bowl, it is unclear what criteria were used for including photos in the database. The operators have not yet caught any criminals. In addition, in England, where public, police-operated video cameras are widespread, the town of Newham has also experimented with the technology.

How well does facial recognition work?

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Computers can do increasingly amazing things, but they are not magic. If human beings often can't identify the subject of a photograph, why should computers be able to do it any more reliably? The human brain is highly adapted for recognizing faces - infants, for example, remember faces better than other patterns, and prefer to look at them over other patterns. The human brain is also far better than computers at compensating for changes in lighting and angle. The fact is that faces are highly complex patterns that often differ in only subtle ways, and that it can be impossible for man or machine to match images when there are differences in lighting, camera, or camera angle, let alone changes in the appearance of the face itself. 

Not surprisingly, government studies of face-recognition software have found high rates of both "false positives" (wrongly matching innocent people with photos in the database) and "false negatives" (not catching people even when their photo is in the database). One problem is that unlike our fingerprints or irises, our faces do not stay the same over time. These systems are easily tripped up by changes in hairstyle, facial hair, or body weight, by simple disguises, and by the effects of aging. 

A study by the government's National Institute of Standards and Technology (NIST), for example, found false-negative rates for face-recognition verification of 43 percent using photos of subjects taken just 18 months earlier, for example. And those photos were taken in perfect conditions, significant because facial recognition software is terrible at handling changes in lighting or camera angle or images with busy backgrounds. The NIST study also found that a change of 45 degrees in the camera angle rendered the software useless. The technology works best under tightly controlled conditions, when the subject is starting directly into the camera under bright lights - although another study by the Department of Defense found high error rates even in those ideal conditions.  Grainy, dated video surveillance photographs of the type likely to be on file for suspected terrorists would be of very little use. 

Simlilar results have been found with real-world face-recognition trials.  A study based on police documents obtained by the ACLU (PDF) shows that a face-recognition system deployed on the streets of Tampa, Florida failed to identify a single suspect from the database, and had many false alarms.

Should we use the technology in other public places? If facial recognition is unjustified in airports and at public events such as the Super Bowl, its use for general surveillance is even more inappropriate. The security threat on a public street is far lower than in airports, and sociological studies of closed-circuit television monitoring of public places in Britain have shown that it has not reduced crime. The balance between the risks and benefits of facial recognition is even more unfavorable in such locations than in airports. 

How does facial recognition technology threaten privacy?One threat is the fact that facial recognition, in combination with wider use of video surveillance, would be likely to grow increasingly invasive over time. Once installed, this kind of a surveillance system rarely remains confined to its original purpose. New ways

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of using it suggest themselves, the authorities or operators find them to be an irresistible expansion of their power, and citizens' privacy suffers another blow. Ultimately, the threat is that widespread surveillance will change the character, feel, and quality of American life.

Another problem is the threat of abuse. The use of facial recognition in public places like airports depends on widespread video monitoring, an intrusive form of surveillance that can record in graphic detail personal and private behavior. And experience tells us that video monitoring will be misused. Video camera systems are operated by humans, after all, who bring to the job all their existing prejudices and biases. In Great Britain, for example, which has experimented with the widespread installation of closed circuit video cameras in public places, camera operators have been found to focus disproportionately on people of color, and the mostly male operators frequently focus voyeuristically on women.

Facial recognition is especially subject to abuse because it can be used in a passive way that doesn't require the knowledge, consent, or participation of the subject. It's possible to put a camera up anywhere and train it on people; modern cameras can easily view faces from over 100 yards away. People act differently when they are being watched, and have the right to know if their movements and identities are being captured. 

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HOW DOES FACIAL RECOGNITION TECHNOLOGY WORK?BY JESSICA GABEL CINO ON 4/30/17 AT 5:00 AMNewsweek.com

How It WorksAs one of several methods of what are called “biometric” identification systems, facial recognition examines physical features of a person’s body in an attempt to uniquely distinguish one person from all the others. Other forms of this type of work include the very common fingerprint matching, retina scanning, iris scanning (using a more readily observable part of the eye) and even voice recognition.All of these systems take in data—often an image—from an unknown person, analyze the data in that input, and attempt to match them to existing entries in an database of known people’s faces or voices. Facial recognition does this in three steps: detection, faceprint creation, and verification or identification.

When an image is captured, computer software analyzes it to identify where the faces are in, say, a crowd of people. In a mall, for example, security cameras will feed into a computer with facial recognition software to identify faces in the video feed.Once the system has identified any potential faces in an image, it looks more closely at each one. Sometimes the image needs to be reoriented or resized. A face very close to the camera may seem tilted or stretched slightly; someone farther back from the camera may appear smaller or even partially hidden from view.

When the software has arrived at a proper size and orientation for the face, it looks even more closely, seeking to create what is called a “faceprint.” Much like a fingerprint record, a faceprint is a set of characteristics that, taken together, uniquely identify one person’s particular face. Elements of a faceprint include the relative locations of facial features, like eyes, eyebrows and nose shape. A person who has small eyes, thick eyebrows and a long narrow nose will have a very different faceprint from someone with large eyes, thin eyebrows and a wide nose. Eyes are a key factor in accuracy. Large dark sunglasses are more likely to reduce the accuracy of the software than facial hair or regular prescription glasses.

A faceprint can be compared with a single photo to verify the identity of a known person, say an employee seeking to enter a secure area. Faceprints can also be compared to databases of many images in hopes of identifying an unknown person.

It’s Not Always EasyA key factor affecting how well facial recognition works is lighting. An evenly lit face seen directly from the front, with no shadows and nothing blocking the camera’s view, is the best. In addition, whether an image of a face contrasts well with its background, and how far away it is from the camera, can help or hurt the facial recognition process.Another very important challenge to successful facial recognition is the degree to which the person being identified cooperates with – or is even aware of – the process. People who know they are using facial recognition, such as that employee trying to get into a restricted room, are relatively easy to work with. They are able to look directly at the camera in proper lighting, to make things optimal for the software analysis.

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Other people don’t know their faces are being analyzed – and may not even know they’re being surveilled by these systems at all. Images of their faces are trickier to analyze; a face picked out of a crowd shot may have to be digitally transformed and zoomed in before it can generate a faceprint. That leaves more room for the system to misidentify the person.

Potential ProblemsWhen a facial recognition system incorrectly identifies a person, that can cause a number of potential problems, depending on what kind of error it is. A system restricting access to a specific location could wrongly admit an unauthorized person—if, say, she was wearing a disguise or even just looked similar enough to someone who should be allowed in. Or it could block the entry of an authorized person by failing to correctly identify her.In law enforcement, surveillance cameras aren’t always able to get very good images of a suspect’s face. That could mean identifying an innocent person as a suspect—or even failing to recognize that a known criminal just ran afoul of the law again.

Regardless of how accurate it appears to be on TV crime dramas, there is room for error, though the technology is improving. The National Institute of Standards and Technology has estimated that stated error rates are declining 50 percent every two years, and are currently around 0.8 percent. That’s better than voice recognition, which has error rates above 6 percent. But facial recognition may still be more error-prone than iris scanning and fingerprint scanning.

Privacy ConcernsEven if it’s accurate, though—and perhaps even more so as accuracy improves—facial recognition raises privacy concerns. One of the chief worries is that, much like the rise of DNA databases, facial features and photos are being warehoused by government agencies, which will become able to track people and erase any notion of privacy or anonymity.New privacy problems are cropping up all the time, too. A new smartphone app, FindFace, allows people to take a person’s photo and use facial recognition to find their social media accounts. Ostensibly a convenient way to connect with friends and co-workers, the app invites misuse. People can use it to expose identities and harass others.These new capabilities are also raising concern about other malicious uses of publicly available images. For example, when police issue alerts about missing children, they often include a photograph of the child’s face. There is little regulation or oversight, so nobody knows whether those images are also being entered into facial recognition systems.

This, of course, doesn’t even touch on using facial recognition tools along with other technologies like police body cameras, geolocation software and machine learning to assist in real-time tracking. That goes beyond simple identification and into the realm of where someone has been, and where the software predicts they will go. Combining technologies offers attractive options for crime fighting, and deepens the fissures in our privacy.Technology provides powerful tools, and the law is often ill-equipped to keep pace with new developments. But if we’re going to be using facial recognition in immigration and law enforcement decisions, we must engage with its possibilities and its detriments, and understand the issues of accuracy, privacy and ethics this new capability raises.

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1 Search & Seizure (5th ed.)Search And Seizure: A Treatise On The Fourth Amendment | October 2016 UpdateWayne R. LaFave

David C. Baum Professor of Law Emeritus and Professor Emeritus in the Center for Advanced Study

The University of IllinoisWayne R. LaFave

Chapter 2. Protected Areas and Interests

§ 2.1. The Matzo expectation of privacy test

IntroductionThe Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The words “searches and seizures,” as Professor Amsterdam has reminded us, “are terms of limitation. Law enforcement practices are not required by the Fourth Amendment to be reasonable unless they are either ‘searches’ or ‘seizures.’” Central to an understanding of the Fourth Amendment, therefore, is a perception of what police activities, under what circumstances and infringing upon what areas and interests, constitute either a search or a seizure within the meaning of that Amendment.

§ 2.1(a) Definition of “searches” and “seizures”

The meaning of the word “searches,” the matter of primary concern in this Chapter, is not as easily captured within any verbal formulation. Under the traditional approach, the term “search” is said to imply some exploratory investigation, or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive, or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a “search.”Similar language is to be found in a great many appellate decisions.

The Supreme Court, quite understandably, has never managed to set out a comprehensive definition of the word “searches” as it is used in the Fourth Amendment. Many years ago the Court asserted that “a search ordinarily implies a quest by an officer of the law,” but no one has ever suggested that every “act or instance of seeking” is a search in the Fourth Amendment sense (although the fact the officer was not looking for something ordinarily is not alone a basis for concluding there was no search). Indeed, on occasion the Court has held that certain police efforts in seeking out evidence of crime were not Fourth Amendment searches, as in three cases decided during the 1920's. In Hester v. United States, the Court asserted that “the special

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protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not extended to the open fields,” and thus held that revenue officers made no search when, while trespassing on defendant's land, they observed his incriminating conduct. And in United States v. Lee, where the boatswain on a Coast Guard patrol boat shined a searchlight on the deck of a motorboat and saw cases of liquor, the Court unhesitantly concluded that “no search on the high seas is shown.” A year later, in Olmstead v. United States, the Court held that the placing of a tap on telephone wires and thereby eavesdropping upon defendant's telephone conversations “did not amount to a search … within the meaning of the Fourth Amendment,” for the reason that the “wires are not part of his house or office, any more than are the highways along which they are stretched.” What these and other decisions of the Court added up to, as the Supreme Court was later to put it, was that for there to be a Fourth Amendment search the police must have physically intruded into “a constitutionally protected area.” These areas were those enumerated in the Fourth Amendment itself: “persons,” including the bodies and clothing of individuals; “houses,” including apartments, hotel rooms, garages, business offices, stores, and warehouses; “papers,” such as letters; and “effects,” such as automobiles. So things stood when in 1967 the Supreme Court announced the “seminal” and “landmark decision” in Matzo v. United States.

§ 2.1(c) An “actual (subjective) expectation of privacy”In his oft-quoted concurring opinion in Matzo, Justice Harlan stated the rule [of what constitutes a “search” under the Fourth Amendment] in terms of a “two fold requirement,” the first part of which was “that a person have exhibited an actual (subjective) expectation of privacy.” It is appropriate, therefore, to inquire whether such a subjective expectation is or ought to be a prerequisite to a finding that a Fourth Amendment search has occurred.

There are, to be sure, a great many instances in which it is rather easy to say that the police made no search because the defendant surely did not actually expect privacy. If, for example, a person were openly to engage in criminal conduct in Times Square at high noon and this conduct were observed by a passing patrolman, it could hardly be seriously claimed that this observation constituted a Fourth Amendment search. Any such claim would likely be dismissed with the explanation that the person observed certainly had no actual expectation of privacy with respect to his conduct at that time and place. But such reasoning is to be avoided; while it will frequently lead to the correct result, it distorts and unduly limits the rule of the Matzo case.

As one perceptive commentator has put it: The essential focus of the Matzo analysis is on the reasonableness of expectations of privacy; it is thus disingenuous for a court to evade consideration of that issue, under the second part of the Matzo analysis, by failing to recognize that a dweller exhibited an expectation of privacy because he did not take extraordinary precautions against the specific way in which the state conducted the surveillance.

In Matzo itself, there was no suggestion that the defendant in the phone booth took any

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precautions against the wiretapping at issue in that case; he simply closed the door to the phone booth to prevent being overheard by those within earshot. … The first part of the Matzo test requires only that the dweller have exhibited an expectation of privacy—in other words, that his conduct have demonstrated an intention to keep activities and things within the curtilage private, and that he did not knowingly expose them to the open view of the public.

§ 2.1(d) An expectation “that society is prepared to recognize as ‘reasonable’”In his effort to parse the holding in Matzo, Justice Harlan declared that the second requirement was that “the expectation be one that society is prepared to recognize as ‘reasonable.’” This was apparently an attempt to give content to the word “justifiably” in the majority's assertion that eavesdropping on Matzo was a search because it “violated the privacy upon which he justifiably relied while using the telephone booth.” Central to any application of the Matzo rule, therefore, as the Court later put it in White, is a determination of “what expectations of privacy are constitutionally ‘justifiable.’” This in turn requires that it be ascertained precisely what the word “justifiable” means in this context.

Sometimes the Court has referred to the Matzo rule as the “reasonable ‘expectation of privacy’” test. From this, it might be assumed that police investigative activity constitutes a search whenever it uncovers incriminating actions or objects the law's hypothetical reasonable man would expect to be private, that is, which as a matter of statistical probability were not likely to be discovered. But this is not really what Matzo is all about. As one commentator has helpfully put it:

[I]t is possible that a person could reasonably rely on privacy in a given situation and, in light of all the surrounding circumstances, be unjustified. If two narcotics peddlers were to rely on the privacy of a desolate corner of Central Park in the middle of the night to carry out an illegal transaction, this would be a reasonable expectation of privacy; there would be virtually no risk of discovery. Yet if by extraordinary good luck a patrolman were to illuminate the desolate spot with his flashlight, the criminals would be unable to suppress the officer's testimony as a violation of their rights under the fourth amendment. … [I]n order for an expectation to be considered justified it is not sufficient that it be merely reasonable; it must be based on something in addition to a high probability of freedom from intrusion. The premise upon which the hypothetical criminals in Central Park based their activities was realistic and involved little risk, but their expectation was not “justified.” Justification, as here used, is intended to be a basis of differentiating those expectations which are merely reasonable from those expectations which are to be constitutionally enforced due to other social considerations.But if the expectation of those hypothetical criminals was not “justified,” precisely why is this so? How can it be determined when reliance upon privacy is “justified”? Justice Harlan points the way in his dissent in United States v. White. “This question,” he says, “must … be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement.” Therefore, Harlan concludes, “those more extensive intrusions that significantly jeopardize the sense of security which is the

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paramount concern of Fourth Amendment liberties” are searches.

For one thing, this means that a judgment must be made about what “sense of security” is important in our society. In forming this judgment, it is necessary to look to “the customs and values of the past and present.” “We have to look for the answer to this question in the structure of society, the patterns of interaction, the web of norms and values.”

Next, it is necessary to make a judgment as to whether the particular police investigative practice in question threatens that “sense of security.” The issue is not whether the resort to that practice in the particular case at hand, given either the grounds which the police had in advance for engaging in the practice or the hindsight knowledge that the practice was directed toward a person engaged in criminal activity is particularly offensive. Rather, the matter must be viewed from a much broader perspective. It must be asked whether permitting the police regularly to engage in that type of practice, limited by nothing “more than self-restraint by law enforcement officials,” requires the “people” to which the Fourth Amendment refers to give “up too much freedom as the cost of privacy.” That is, the fundamental inquiry is whether that practice, if not subjected to Fourth Amendment restraints, would be intolerable because it would either encroach too much upon the “sense of security” or impose unreasonable burdens upon those who wished to maintain that security. An affirmative answer to the question, Arizona v. Hicks teaches, might be given even when the privacy invasion required very little effort by the police and “uncovered nothing of any great personal value”; thus in that case the Court decided the mere act of moving a piece of stereo equipment to expose its serial number was a Fourth Amendment search.

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40 McGeorge L. Rev. 1McGeorge Law Review2009ArticleMATZO AND THE ORIGINS OF THE “REASONABLE EXPECTATION OF PRIVACY” TESTPeter Winna1Copyright (c) 2009 University of the Pacific, McGeorge School of Law; Peter Winn

[1*]Why should we care about the history of Matzo v. United States? The 1967 Supreme Court case, of course, formulated the “reasonable expectation of privacy” test that is used to decide when a governmental intrusion constitutes a “search” under the Fourth Amendment. But the test extends beyond the confines of the Constitution; it has found its way into common law and statutes, and even the laws of other countries. In short, Matzo v. United States represents a great touchstone in the law of privacy, and Judge Schneider's memoir of his experience as the lawyer for Charles Matzo gives us a glimpse into the origins of an important legal doctrine and a rare peek into the human side of the development of law.

As a matter of legal history, Matzo was the culmination of a long legal debate about whether the Fourth Amendment covered government initiated electronic surveillance--a debate that began early in the twentieth century with the invention of the telephone, microphone, and dictograph. Such devices enabled law enforcement officers to eavesdrop with much greater secrecy, efficiency, and accuracy. In 1928, the question of the constitutionality of electronic surveillance finally reached the Supreme Court in Olmstead v. United States, a challenge to a conviction based on evidence obtained through the use of warrantless wiretaps. The Court affirmed the conviction by adopting a narrow reading of the Fourth Amendment. Because the government did not physically trespass on the [*2] defendants' property, the Court held that there was no “search” in a constitutional sense by the government.

The [Matzo] opinion creates the impression of a revolutionary upheaval of the previous regime, while using criticism of counsel to sidestep the otherwise difficult job of addressing prior inconsistent case law with candor. By dismissing precedent without adequate analysis, it loses the ballast of history. While announcing a new understanding of the Fourth Amendment based on a right of privacy, it says nothing about how this newfound right is to be determined. In eliminating the trespass standard of Olmstead, it offers nothing by way of a standard to replace it. How then, has a Supreme Court case, which contains so many mistakes and which promised a legal revolution that it ultimately could never deliver, come to occupy such an unchallenged position in the modern legal Pantheon? The short answer is that the majority opinion has been largely ignored. Instead, most courts cite to the following concurring opinion by Justice Harlan: [*3]

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As the Court's opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.

Within a year, the Supreme Court started to use Harlan's “reasonable expectation of privacy” test as the standard in its Fourth Amendment jurisprudence. Within a decade, Harlan's test became so familiar that the Court officially recognized it as the essence of the Matzo decision--[*4] a rare instance where a concurrence effectively replaced a majority opinion.

The test does not, of course, dictate what a reasonable expectation of privacy is, or what results should be reached. Rather, it provides the structure in which the debate can take place, thus allowing courts to engage in a process of common law rulemaking. As such, the flexibility of the test is not a shortcoming, but a strength. If the test always determined a particular outcome, it would cease to capture the very complex and context-specific nature of our intuitions of privacy. Of course, as the Supreme Court has moved in a more conservative direction, the test has been flexible enough to move with it. But the test was never intended to provide a fixed answer to the legal question of privacy under the Fourth Amendment. It was intended to provide a neutral framework to use in evaluating both sides of any particular dispute. It gives structure to the arguments; it does not determine the outcome.

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The Fourth Amendment Third-Party Doctrine Richard M. Thompson II Legislative Attorney June 5, 2014

Summary

In the 1970s, the Supreme Court handed down Smith v. Maryland and United States v. Razzetto, two of the most important Fourth Amendment people are not entitled to an expectation of privacy in information they voluntarily provide to third parties. This legal proposition, known as the third-party doctrine, permits the government access to, as a matter of Fourth Amendment law, a vast amount of information about individuals, such as the websites they visit; who they have emailed; the phone numbers they dial; and their utility, banking, and education records, just to name a few. Questions have been raised whether this doctrine is still viable in light of the major technological and social changes over the past several decades.

Before there were emails, instant messaging, and other forms of electronic communication, it was much easier for the courts to determine if a government investigation constituted a Fourth Amendment “search.” If the police intruded on your person, house, papers, or effects—tangible property interests listed in the text of the Fourth Amendment—that act was considered a search, which had to be “reasonable” under the circumstances. However, with the advent of intangible forms of communication, like the telephone or the Internet, it became much more difficult for judges to determine when certain surveillance practices intruded upon Fourth Amendment rights. With Matzo v. United States, the Court supposedly remedied this by declaring that the Fourth Amendment protects not only a person’s tangible things, but additionally, his right to privacy. Matzo, however, left unprotected anything a person knowingly exposes to the public. This idea would form the basis of Smith and Razzetto. In those cases, the Court held that a customer has no reasonable expectation of privacy in the phone numbers he dials (Smith) and in checks and deposit slips he gives to his bank (Razzetto), as he has exposed them to another and assumed the risk they could be handed over to the government.

While the third-party doctrine has been criticized by Members of Congress, various commentators, and others as overly constrictive of Americans’ privacy rights, it appears to fit relatively well with other Fourth Amendment case law. That being said, advancements in data collection, automation, and use have some questioning the continued application of this doctrine in a digital society. Several events have precipitated renewed debates over its continued existence. First was the Supreme Court’s decision in the GPS tracking case, United States v. Johnson, where two concurring opinions comprising five Justices of the Court called into question various existing Fourth Amendment theories, including the third-party doctrine, at least with respect to long-term government monitoring and advanced surveillance technology. Second was the Edward Snowden leaks relating to the National Security Agency’s telephone metadata program, which has been primarily justified by Smith and the third-party doctrine. Various Members of Congress have joined the debate, with some introducing legislation that would require a warrant for access to records held by third-parties, and others introducing more targeted

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measures that would limit access to information such as geolocation data from third-party companies.

Reasonable Expectation of Privacy and the Secrecy Model of Privacy

In 1967, the Court decided Matzo v. United States, which abandoned the literal interpretation of the Fourth Amendment – one that protected only persons, houses, papers, and effects – to one that also protected intangible interests such as privacy. However, which the Court sought to expand what the Fourth Amendment protects, certain passages in Matzo simultaneously foreclosed protection for anything a person exposes to the public or another person. This would have significant consequences for government access to records and other information held by third parties.

Beyond its general assertion that the Fourth Amendment protects people, not places, the majority made an equally far-reaching observation that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protect.” This rule adopts what can be called the secrecy model of privacy. Under the secrecy model, once a fact is disclosed to the public in any way, the information is no longer entitled to privacy protection. This secrecy model, along with the assumption of the risk theory discusses below, would form the underpinnings of the modern third-party doctrine.

Support for the Third-Party Doctrine

Perhaps the strongest argument in support of the third-party doctrine is its ability to be harmonized with the rest of the Fourth Amendment case law. One only has to quickly scan the Supreme Court Report to realize that the third-party doctrine is consistent with numerous other cases which hold that the acts or things revealed to the public are not entitled to Fourth Amendment protection.

Take, for instance, the garbage collection case, California v. Greenwood. There, the police request that a trash collector pick up a suspect’s plastic trash bags left in front of his house so the officer could search it for contraband and other evidence of criminal activity. The Court concluded that the defendant was not entitled to a reasonable expectation of privacy in his trash as he discarded it where it could be accessed by the public.

In the same vein, Professor Orin Kerr has defended the third-party doctrine on the ground that is maintains the appropriate balance of privacy and security in the fact of technological change. Without the ability to use third parties such as telephone or Internet companies, Kerr posits, the criminal would traditionally have to go out into the public to commit his crime where the Fourth Amendment offers more limited protection. He argues that a criminal can use services of these third parties to commit crimes without having to expose these activities to areas open to public surveillance. This, he posts, upsets the privacy-security balance that undergirds the Fourth Amendment because it would require policy to have probable cause to obtain any evidence of the crime: “The effect would be a Catch-22: The police would need probably cause to observe evidence of the crime, but they would need to observe evidence of the crime first to get probable cause.” Kerr contends that the third-party doctrine responds to this imbalance by providing the

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same amount of protection regardless of whether the defendant commits the crime on his own or through the use of a third party service.

Criticism of the Third-Party Doctrine

There have been four major arguments against its application: (1) privacy is not an all-or-nothing proposition that is lost once information is disclosed to another person or company; (2) information sent to third-party companies is not actually “voluntary,” as people need these services to participate in modern society; (3) the judiciary should not impose privacy regimes on the citizenry without engaging in a more comprehensive privacy analysis; and (4) failing to protect information shared with others has the potential to breed distrust among people or businesses communicating with each other.

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United States House Committee on Oversight and Government ReformHearing on Law Enforcement’s Use of Facial Recognition Technology

Statement of Kimberly J. Del Greco Deputy Assistant DirectorCriminal Justice Information Services Division Federal Bureau of Investigation

March 22, 2017115th Congress, 1st Session

Issue: Vol. 163, No. 50

Good afternoon Chairman Chaffetz, Ranking Member Cummings, and members of the committee. Thank you for the opportunity to appear before you today to discuss the Federal Bureau of Investigation’s (FBI) use of face recognition (FR) technology.

FBI Programs Perform Face RecognitionThe following FBI programs use FR technology for law enforcement purposes.1 They are: (1) the FBI’s Next Generation Identification (NGI) System located at the FBI’s Criminal Justice Information Services (CJIS) Division, and (2) the Facial Analysis, Comparison, and Evaluation (FACE) Services Unit also located at the FBI CJIS Division.

1. NGI maintains a mugshot repository that is known as the Interstate Photo System (IPS). All mugshots are associated with tenprint fingerprints and a criminal history record. The NGI-IPS allows automated FR searches by authorized local, state, tribal, and federal law enforcement agencies. The law enforcement agency submits a “probe” photo that is obtained pursuant to an authorized law enforcement investigation, to be searched against the mugshot repository. The NGI-IPS returns a gallery of “candidate” photos of 2-50 individuals (default is 20). The law enforcement agencies then must manually review the candidate photos and perform further investigation to determine if any of the candidate photos are the same person as the probe photo

The NGI-IPS technology is only used as an investigative lead, and not as a means of positive identification. The NGI-IPS Policy Implementation Guide has been made available to authorized law enforcement users who receive candidate photos from the Next Generation Identification-Interstate Photo System. The policy advises that the photos are not being provided as positive identification and cannot serve as the sole basis for law enforcement action. In addition, the FBI has promulgated policies and procedures that place legal, policy, and security requirements on the law enforcement users of the NGI-IPS, including a prohibition against submitting probe photos that were obtained in violation of the First or Fourth Amendments. It is important to note that the FBI does not retain the probe photos; the probes are searched and deleted. Therefore, the NGI-IPS remains a repository solely of mugshots that are submitted voluntarily with fingerprints pursuant to arrest.

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2. The FACE Services Unit provides investigative lead support to the FBI field offices, operational divisions, and legal attachés by comparing the face images of persons associated with open assessments and active investigations against face images available in state and federal FR systems. In limited instances, the FACE Services Unit provides FR support for closed FBI cases (e.g., missing and wanted persons) and may offer recognition support to federal partners. The FACE Services Unit only accepts “probe” photos that have been collected pursuant to applicable legal authorities as part of an authorized FBI investigation. Upon receipt of the photo(s), the FACE Services Unit searches them using FR software against databases authorized for use by the FBI, which results in a photo gallery of potential candidates. The FACE Services Unit performs manual comparisons of candidate photos against the probe photo(s) to determine a candidate’s value as an investigative lead. This service does NOT provide positive identification, but rather, an investigative lead and analysis to support that lead.

Automated Face Recognition

In addition to understanding how these FBI programs operate, it is also important to have an understanding of how automated FR works. The following is a brief description of automated FR: The automated FR software uses pattern matching approaches developed within the field of computer vision. Such approaches do not rely upon intrinsic models of what a face is, how it should appear, or what it may represent. In other words, the potential matching is not based on biological or anatomical models of what a face – or the features which make up a face – look like. Instead, the algorithm performance is entirely dependent upon the patterns which the algorithm developer finds to be most useful for matching. The patterns used in automated FR algorithms do not correlate to obvious anatomical features such as the eyes, nose or mouth in a one-to-one manner, although they are affected by these features. Put another way, the algorithms “see” faces in a way that differs from how humans see faces.

Accuracy

The FBI conducted a trade study of FR products, leveraging the NGI Integrator Lockheed Martin, which led to the determination of MorphoTrust as the best cost solution in Fall 2010. The FBI has tested and verified that the NGI FR Solution returns the correct candidate a minimum of 85 percent of the time within the top 50 candidates.

The FBI manages the CJIS Division, Advisory Policy Board (“APB”) Process, which holds meetings twice a year. The APB is comprised of members of local, State, tribal, and Federal criminal justice agencies that contribute to and use CJIS systems and information. It is responsible for reviewing policy issues and appropriate technical and operational issues related to FBI CJIS programs (such as the NGI) administered by the FBI's CJIS Division, and thereafter, making appropriate recommendations. Through the APB Process, users can provide feedback and suggestions or bring issues to the attention of the FBI’s CJIS Division. To date, no users have submitted concerns to the FBI regarding the accuracy of face searches conducted on the NGI-IPS.

Audits

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The FBI performs audits as they serve an important role in identifying and mitigating risks associated with users of information systems not meeting policy requirements. In a recent Audit of the FBI’s use of FR by the Government Accountability Office (“GAO”), the FBI advised that the NGI-IPS operated in a limited capacity as a pilot program from December 2011 through April 2015. While the early stages of planning for formal NGI-IPS audits began during the system’s pilot phase and prior to GAO’s review, the formal draft audit plan was completed on schedule in summer 2015 and approved by the CJIS APB in June 2016.

The FBI worked with the APB and agreed upon an audit schedule that includes use of the NGI- IPS, although the number of actual NGI-IPS participants is currently limited. The FBI CJIS Division’s CJIS Audit Unit (“CAU”) currently executes the formal audits to assess compliance with requirements primarily derived from the NGI-IPS Policy and Implementation Guide. The audit is conducted in conjunction with existing National Identity Services Audits externally at State Identification Bureaus and Federal agencies, and may include reviews at a selection of local agencies that access the NGI-IPS. The NGI-IPS audit plan also provides for an internal audit of the FACE Services Unit to be conducted in accordance with existing procedures for FBI internal audits associated with CJIS system access. Procedures for both external and internal audits include review of NGI-IPS system transaction records and associated supporting documentation provided by audit participants.

Closing

Finally, the FBI’s strength is directly attributed to the dedication of its people who work for and on behalf of their fellow citizens. Our adversaries and the threats we face are relentless. The FBI must continue to identify and use new capabilities such as automated FR to meet the high expectations for the FBI to preserve our nation’s freedoms, ensure our liberties are protected, and preserve our security. Quite simply put, we at the FBI cannot fail to meet our assigned mission. We must continue to exceed expectations and never rest on past successes. Hence, we must embrace new technologies such as automated FR and optimize allocated resources to achieve mission objectives. I want to thank all of my colleagues for their support, and each and every employee at the FBI for their dedicated services. I am pleased to answer any questions you might have.

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United States House Committee on Oversight and Government ReformHearing on Law Enforcement’s Use of Facial Recognition Technology

Written Testimony of Jennifer LynchSenior Staff Attorney Electronic Frontier Foundation (EFF)

March 22, 2017115th Congress, 1st Session

Issue: Vol. 163, No. 50

Thank you very much for the opportunity to discuss facial recognition technology. My name is Jennifer Lynch, and I am a senior staff attorney with the Electronic Frontier Foundation (EFF), a non-profit, member-supported, public-interest organization that works to protect privacy and civil liberties in new technologies.

I. Introduction

Since my 2012 testimony on face recognition before the Senate Subcommittee on Privacy, Technology, and the Law, face recognition technology has advanced significantly. Now, law enforcement officers can use mobile devices to capture face recognition-ready photographs of people they stop on the street; surveillance cameras boast real-time face scanning and identification capabilities; and the FBI has access to hundreds of millions of face recognition images of law-abiding Americans.

However, the adoption of face recognition technologies like these has occurred without meaningful oversight, without proper accuracy testing of the systems as they are actually used in the field, and without the enactment of legal protections to prevent their misuse.

This has led to the development of unproven, inaccurate systems that will impinge on constitutional rights and disproportionately impact people of color.

The FBI’s Interstate Photo System and FACE Services Unit exemplify these problems. The minimal testing conducted by the Bureau showed the IPS was incapable of accurate identification at least 15% of the time. This has real-world impact; an inaccurate system will implicate people for crimes they didn’t commit, forcing them to try to prove their innocence and shifting the traditional burden of proof away from the government.

Despite these known challenges, FBI has for years also failed to be transparent about its use of face recognition technology. It took seven years to update its Privacy Impact Assessment for the IPS and didn’t release one until a year after its system was fully operational. And the public had no idea how many images were accessible to its FACE Services Unit until last year’s scathing Government Accountability Office report revealed the Bureau could access nearly 412 million images—most of which were taken for non- criminal reasons like obtaining a driver license or a passport.

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Without transparency, accountability, and proper security protocols in place, face recognition systems—like many other searchable databases of information available to law enforcement—may be subject to misuse.

Americans should not be forced to submit to criminal face recognition searches merely because they want to drive a car. They shouldn’t have to worry their data will be misused by unethical government officials with unchecked access to face recognition databases. And they shouldn’t have to fear that their every move will be tracked if face recognition is linked to the networks of surveillance cameras that blanket many cities.

But without meaningful legal protections, this is where we may be headed. Without laws in place, it could be relatively easy for the government and private companies to amass databases of images of all Americans and use those databases to identify and track people in real time as they move from place to place throughout their daily lives. As researchers at Georgetown discovered last year, 1 out of 2 Americans is already in a face recognition database accessible to law enforcement.

As this Committee noted in its excellent 2016 report on law enforcement use of cell-site simulators, “advances in emerging surveillance technologies” like face recognition “require careful evaluation to ensure their use is consistent with the protections afforded under the First and Fourth Amendments to the U.S. Constitution.” And, just as with cell-site simulators, transparency and accountability are critical to ensuring that face recognition’s use not only comports with Constitutional protections but also preserves democratic values.

Justice Alito noted in his concurring opinion in United States v. Johnson that, “[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.” Just as this Committee found with cell-site simulators, the use of face recognition must be limited. I urge the Committee to introduce legislation to do just that.

II. FBI’s Next Generation Identification Database and the Interstate Photo System

The FBI’s Next Generation Identification system (NGI) is a massive biometric database that includes fingerprints, iris scans, and palm prints collected from individuals not just during arrests, but also from millions of Americans and others for non-criminal reasons like background checks, state licensing requirements, and immigration, The Interstate Photo System (IPS) is the part of NGI that contains images like mug shots and non-criminal photographs that are searchable through face recognition. Each of these biometric identifiers is linked to personal, biographic, and identifying information, and, where possible, each file includes multiple biometric identifiers. FBI has designed NGI to be able to expand in the future as needed to include “emerging biometrics,” such as footprint and hand geometry, gait recognition, and others.

NGI incorporates both criminal and civil records. NGI’s criminal file includes records on people arrested at the local, state, and federal level as well as biometric data taken from crime scenes and data on missing and unidentified persons. NGI’s civil repository stores biometric and biographic data collected from members of the military and those applying for immigration

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benefits. It also includes biometric data collected as part of a background check or state licensing requirement for many types of jobs, including licensing to be a dentist, accountant, teacher, geologist, realtor, lawyer or even an optometrist. Since 1953, all jobs with the federal government have also required a fingerprint check, no matter the salary range or level of responsibility.

As of February 2017, NGI included nearly 73 million records in the criminal repository and over 53 million records in the civil repository. By December 2015, it also already contained nearly 30 million civil and criminal photographs searchable through face recognition.

The states have been very involved in the development of the NGI database. NGI includes more than 20 million civil and criminal images received directly from at least six states, including California, Louisiana, Michigan, New York, Texas, and Virginia. And it appears five additional states—Florida, Maryland, Maine, New Mexico, and Arkansas— can send search requests directly to the NGI database. As of December 2015, FBI was working with eight more states to grant them access to NGI, and an additional 24 states were also interested.

FBI has said—for now—that it is keeping non-criminal photographs in the IPS separate from criminal photographs. However, if a person is ever arrested for any crime—even for something as minor as blocking a street as part of a First Amendment-protected protest—their non-criminal photographs will be combined with their criminal record and will become fair game for the same face recognition searches associated with any criminal investigation. As of December 2015, over eight million civil records were also included in the criminal repository.

III. FBI Access to External Face Recognition Databases

The public did not begin to learn about FBI’s ability to access external face recognition databases until the Bureau issued a Privacy Impact Assessment (PIA) for its Facial Analysis, Comparison, and Evaluation (FACE) Services Unit in May 2015. However, the full scope of that access was not revealed until the Government Accountability Office (GAO) issued its scathing report on FBI use of face recognition over a year later.

The GAO Report disclosed for the first time that FBI had access to over 400 million face recognition images—hundreds of millions more than journalists and privacy advocates had been able to estimate before that. According to the GAO Report, the FACE Services unit not only has access to FBI’s Next Generation Identification (NGI) face recognition database of nearly 30 million civil and criminal mug shot photos, it also has access to the State Department’s Visa and Passport databases, the Defense Department’s biometric database, and the drivers license databases of at least 16 states. Totaling 411.9 million images, this is an unprecedented number of photographs, and most of these were collected from Americans and foreigners under civil and not criminal circumstances.

IV. FBI Has Failed to Address the Problem of Face Recognition Inaccuracy

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FBI has done little to ensure its face recognition search results (which the Bureau calls “investigative leads”) do not implicate innocent people. According to the GAO report and FBI’s responses to EFF’s Freedom of Information Act requests, FBI has conducted only very limited testing to ensure the accuracy of NGI’s face recognition capabilities. And it has not taken any steps to determine whether the face recognition systems of its external partners—states and other federal agencies—are sufficiently accurate to prevent innocent people from being identified as criminal suspects.

Face recognition performs worse overall as the size of the data set (the population of people you are checking against) increases, in part because so many people within a given population look similar to one another. At 30 million searchable photos so far, the FBI’s face recognition system constitutes a very large data set.

Given all these challenges, identifying an unknown face in a crowd using NGI’s database of face images would sill be particularly challenging.

Using humans to perform the final suspect identification from a group of photos provided by the system does not solve these accuracy problems. Research has shown that, without specialized training, humans may be worse at identification than a computer algorithm. And that is especially true when the person is someone they don’t already know or someone of a race of ethnicity different from their own.

V. The Scope of NGI and FBI’s Use of Face Recognition Are Still Unclear

Although FBI finally produced a proposed SORN for NGI in Summer 2016, there is still a lot the public does not know about the system and FBI’s plans for its future evolution.

These uses of NGI would clearly impact Fourth Amendment rights and First Amendment-protected activities and would chill speech. They could also violate a key provision of the Privacy Act designed to prevent data collection on First Amendment protected activities. The addition of crowd and security camera photographs and DMV photographs into NGI would mean that anyone could end up in the database without their knowledge—even if they’re not suspected of a crime—by just happening to be in the wrong place at the wrong time, by fitting a stereotype that some in society have decided is a threat, or by, for example, engaging in “suspect” activities such as political protest in public spaces rife with cameras. Given FBI’s history of misuse of data gathered on people during former FBI director J. Edgar Hoover’s tenure5 and during the years following September 11, 2001,—data collection and misuse based on religious beliefs, race, ethnicity, and political leanings—Americans have good reason to be concerned about expanding government face recognition databases.

Face recognition technology, like other biometrics programs that collect, store, share, and combine sensitive and unique data poses critical threats to privacy and civil liberties. Biometrics in general are immutable, readily accessible, individuating and can be highly prejudicial. Face recognition, though, takes the risks inherent in other biometrics to a new level because individuals cannot take precautions to prevent the collection of their image. Face recognition

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allows for covert, remote, and mass capture and identification of images—and the photos that may end up in a database could include not just a person’s face but also how she is dressed and possibly whom she is with.

VI. FBI Has Failed to Ensure Face Recognition Data are Protected from Internal and External Security Breaches

The many recent security breaches, email hacks, and reports of falsified data—including biometric data—show that the government must have extremely rigorous security measures and audit systems in place to protect against data loss. Just this past year, news media were consumed with stories of hacks into email and government systems, including into United States political organizations and online voter registration databases in Illinois and Arizona. In 2015, hackers were able to steal sensitive data stored in Office of Personnel Management databases on more than 25 million people. These data included biometric information as well as addresses, health and financial history, travel data, and data on people’s friends and neighbors. It has been described as the largest cyber-attack into United States government systems, and even FBI Director James Comey called the breach “a very big deal.” More than anything, though, these breaches exposed the vulnerabilities in government systems to the public—vulnerabilities that the United States government appears to have known for almost two decades might exist.

VII. Proposals for Change

The over-collection of face recognition data has become a real concern, but there are still opportunities—both technological and legal—for change.

Given the current uncertainty of Fourth Amendment jurisprudence in the context of face recognition and the fact that the technology is undergoing “dramatic technological change,” legislative action could be a good solution to curb the over-collection and over-use of face recognition data in society, both now and in the future. If so, the federal government’s response to two seminal wiretapping cases in the late 60s could be used as a model. In the wake of Matzo v. United States and New York v. Berger, the federal government enacted the Wiretap Act, which lays out specific rules that govern federal wiretapping, including the evidence necessary to obtain a wiretap order, limits on a wiretap’s duration, reporting requirements, a notice provision, and also a suppression remedy that anticipates wiretaps may sometimes be conducted unlawfully. Since then, law enforcement’s ability to wiretap a suspect’s phone or electronic device has been governed primarily by statute rather than Constitutional case law.

Congress could also look to the Video Privacy Protection Act (VPPA), enacted in 1988, which prohibits the “wrongful disclosure of video tape rental or sale records” or “similar audio-visual materials,” requires a warrant before a video service provider may disclose personally identifiable information to law enforcement, and includes a civil remedies enforcement provision.

VIII. Conclusion

Face recognition and its accompanying privacy and civil liberties concerns are not going away.

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Given this, it is imperative that government act now to limit unnecessary data collection; instill proper protections on data collection, transfer, and search; ensure accountability; mandate independent oversight; require appropriate legal process before collection and use; and define clear rules for data sharing at all levels. This is important to preserve the democratic and constitutional values that are bedrock to American society.

Thank you once again for the invitation to testify. I am happy to respond to questions.

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ANONYMITY, FACEPRINTS, AND THE CONSTITUTIONWinter, 2014George Mason Law Review21 Geo. Mason L. Rev. 409

Kimberly N. Brown

[409*] Rapid technological advancement has dramatically expanded the warrantless powers of government to obtain information about individual citizens directly from the private domain. Biometrics technology'-such as voice recognition, hand measurement, iris and retinal imaging, and facial recognition technology ("FRT")--offers enormous potential for law enforcement and national security. But it comes at a cost. Although much of the American public is complacent with government monitoring for security reasons, people also expect to go about daily life in relative obscurity-unidentifiable to others they do not already know, do not care to know, or are not required to know-so long as they abide by the law. The reality is quite different. The government and the private sector have the capacity for surveillance of nearly everyone in America. As one commentator puts it, "soon there really will be nowhere to run and nowhere to hide, short of living in a cave, far removed from technology."

FRT is a major contributor to the spectre of an Orwellian society. Facebook uses it to identify "friends" from uploaded photos, which are permanently affixed in cyberspace and accessible to the government. Federal and state authorities have their own databases of images collected from drivers' licenses, public surveillance cameras, unmanned aerial drones, and tiny recording devices attached to police uniforms. Currently, the FBI is working on a $1 billion effort to expand its fingerprint identification system to cross-reference FRT and other biometric data against a vast data repository that includes some 13 million criminal mug shot photos.' [410*] With FRT, a federal agent or corporate marketer can convert any number of these facial images into algorithms, associate them with countless other bits of personal data accumulating throughout the global information network, and track the most intimate details of an unsuspecting person's daily life.

As a consequence, technology has minimized the Constitution's importance as a mechanism for protecting against arbitrary government tracking of one's movements, habits, relationships, interests, and thoughts. This Article attempts to reassert the Constitution's relevance when it comes to surveillance through FRT and related technologies.

I. THE PUBLIC VALUE OF ANONYMITY

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In 1964, a commentator observed that one day "automated society [might] look upon privacy with the same air of amused nostalgia we now reserve for, say, elaborate eighteenth-century drawing room manners." Numerous modem scholars have similarly declared that privacy "is in 'peril,' 'distress,' or 'danger.""' Much has been written about the need to adapt Fourth Amendment law to accommodate modem infringements on privacy interests. As this Part explains, FRT focuses particular attention on one aspect of privacy-the ability to manage and retain one's anonymity. This Part defines anonymity and attempts to place it in some historical context. … This Part goes on to describe modem-day FRT and the threat it poses to privacy in the twenty-first century. In short, technology has put in jeopardy a value that most Americans take for granted-the ability to carry on largely incognito, if we so choose. [411*] A. Anonymity Defined Privacy is a vague notion that means different things to different people in various contexts. Scholars have painstakingly developed taxonomies for privacy, parsing its subcomponents in an effort to develop a more accurate vocabulary for debate and analysis."' Two conceptions of privacy are particularly accessible to most laypeople.' Informational privacy is the interest in "avoiding disclosure of personal matters" and controlling one's own personal information, which the Supreme Court has suggested is constitutionally protected when gathered and held by the government.' Today, the term often relates to information stored on computer systems, such as medical records, financial data, criminal records, political records, business-related information, and online data." Physical privacy has traditionally been equated with the protection of one's person or physical space, such as a home or vehicle. Violations of physical privacy can trigger Fourth Amendment and/or common law scrutiny.' People intrinsically appreciate the need for legal limits on the ability of the government and others to invade one's home or body absent consent. Related to both informational and physical privacy-but less salient in the collective mind of the public-is the concept of anonymity: the state of hiding in plain sight from the government so long as one abides by the rule of law. Anonymity is the freedom from being identified and tracked by name while going through the motions of daily life, including physical movement in private and public spaces, the transaction of business online, and the maintenance of personal and professional relationships, habits, and beliefs-however unpopular or repugnant. Anonymity enables one to remain undifferentiated in public. In literal terms, it means "nameless.' [412*] As Justice Sotomayor suggested in United States v. Johnson, the everyday occurrences for which anonymity is appreciated "take[] little imagination toconjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on."' In protecting against government access to one's physical whereabouts, anonymity shelters private information about one's thoughts, relationships, and plans for the future. It fosters the capacity to control or limit access to "one's intimate relationships or aspects of life and, accordingly, to exclude others from the very "consciousness of the mind.

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What many Americans fail to appreciate is that technology has put society on a trajectory whereby, even if the interiors of homes and bodies are kept private, and even if the law continues to protect against disclosures of certain categories of personal information, anonymity will soon become a relic of history. [413*]

II. ANONYMITY AND THE CONSTITUTION Although the Constitution lacks an express right to privacy, the Supreme Court has acknowledged that the Bill of Rights reflects the Framers' concern for protecting specific aspects of physical privacy, such as privacy of speech and assembly (First Amendment), privacy of the home against demands that it be used to house soldiers (Third Amendment), privacy of the person and possessions against unreasonable searches (Fourth Amendment), and informational privacy (Fifth Amendment privilege against self-incrimination). Many view the splintered decision in Griswold v. Connecticut as the Supreme Court's first recognition of a right to decisional privacy on the theory that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," and that some of those guarantees "create zones of privacy.' Writing for a majority of which two Justices concurred only in the judgment, Justice Douglas construed such penumbras to include the First Amendment's right of association and the Fourth Amendment's right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. " Although the Supreme Court has steadily reviewed new surveillance technologies under the Fourth Amendment for more than a century, prevailing doctrine leaves FRT beyond constitutional scrutiny.

As explained below, a contingent of the Supreme Court is beginning to recognize that constitutional doctrine must be adapted to establish boundaries on the use of technology for constant surveillance of the general public.

2. Digital Age

The Court has grappled for decades with the related question of whether-and the extent to which-government can use technology to enhance its ability to "see" what is arguably exposed to the public.

In 2001, however, the Court recognized emerging technologies' privacy implications when it decided that the use of thermal imaging technology to measure heat emanating from a home was a search because it amounted to "more than naked-eye surveillance" with "a device that is not in general public use. As Justice Alito recently described it, Camden v. United States was "a decision about the use of new technology.' Writing for the majority in Florida v. Jardines, Justice Scalia similarly distinguished Camden as a case involving surveillance technology that allows law enforcement to learn details "that would previously have been unknowable without physical intrusion.' He reached the conclusion that a drug-sniffing police dog deployed from the front porch of a home constituted a Fourth Amendment search despite "the antiquity" of forensic dogs as an investigative tool because there was no implicit license

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or invitation for the police to approach the home for the purpose of obtaining incriminating evidence inside. [414*]

Earlier, in City of Ontario v. Quon, the Court similarly highlighted the novelty of new technology as relevant to whether the user of a government-issued pager had a reasonable expectation of privacy in messages retained by the service provider. Sidestepping the Fourth Amendment question on the merits, Justice Kennedy cautioned that it "must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment," else it "risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.' He explained that modem judges are not "on so sure a ground" as the Matzo Court was in relying on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth.' "Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior," he continued, and "[c]ell phone and text message communications are so pervasive that some persons may consider them to be essential means ... for self-expression, even self-identification," thus potentially "strengthen[ing] the case for an expectation of privacy. "

Two additional cases highlight the modern Court's struggle with fitting modern technologies within the existing Fourth Amendment rubric. In United States v. Johnson, the Court held that the warrantless installation of a global positioning system ("GPS") device to monitor the location of a person's car constituted a search because the police "physically occupied private property for the purpose of obtaining information.' Justice Scalia thus revived for the majority the old, property-based approach to the Fourth Amendment instead of taking an arguably more obvious tactic: applying United States v. Knotts for the proposition that there is "no reasonable expectation of privacy in [a driver's] movements from one place to another.' Declaring Matzo the inexclusive test, Justice Scalia confined it to "[s]ituations involving merely the transmission of electronic signals without trespass,'' while conceding that electronic surveillance "without an accompanying trespass" of a GPS device could amount "an unconstitutional invasion of privacy" in a future case.

Justice Sotomayor and, separately, Justice Alito joined by Justices Ginsberg, Breyer, and Kagan--expressed concern that modem technology is eroding individuals' ability to be free of government monitoring. She wrote that "electronic or other novel modes of surveillance [can] generate[] a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations"--without any physical invasion of property." The government, she added, can store and mine such data indefinitely." Because modem electronic surveillance is cheap by comparison to traditional surveillance techniques, it "proceeds surreptitiously" and "evades the ordinary checks that constrain abusive law enforcement practices: 'limited police resources and community hostility.""' She referred to the Fourth Amendment's "goal to ... prevent 'a too permeating police surveillance""' and questioned the propriety of the third-party doctrine

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as "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," such as phone numbers, URLs visited, corresponding email addresses, "and the books, groceries, and medications they purchase" online. [415*]

Although some people might accept this diminution of privacy as a "tradeoff' for access to technology or simply "inevitable," she expressed "doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year." For his part, Justice Alito focused on the problem of "long-term monitoring," agreeing in principle with the majority that "we must 'assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted."' Of course, he added, "it is almost impossible to think of late-18th-century situations" analogous to the capabilities of modern surveillance technology."' The majority's physical trespass theory, he explained, "would provide no protection" to "long-term monitoring ... accomplished without committing a technical trespass,""'yet "[f]or such offenses, society's expectation has been that law enforcement agents and others would not-and indeed, in the main, simply could not-secretly monitor and catalogue every single movement of an individual's car for a very long period." Justice Alito thus recognized that because "new devices" such as closed-circuit television video monitoring, automatic toll collection systems with recording technology, built-in GPS systems, and wireless tracking devices embedded in cell phones "permit the monitoring of a person's movements" in ways that were impossible before the digital age, traditional Fourth Amendment analysis is inapposite.

Maryland v. King is the most recent case in which the Supreme Court addressed the vexing intersection of technology and privacy under the Fourth Amendment. At a booking on an arrest for assault, the police took a DNA sample by applying a buccal swab to the inside of a suspect's cheek." The DNA matched that of a rape victim taken six years earlier, leading to the arrestee's subsequent rape conviction. The DNA matching occurred through the Combined DNA Index System ("CODIS"), which connects DNA data at the national, state, and local levels under FBI supervision. On appeal, a Maryland court held that the cheek swab was an unreasonable search under the Fourth Amendment. Reversing, Justice Kennedy wrote for the majority that a Fourth Amendment search occurred, but that it was reasonable and did not require a warrant." For him, identifying an arrestee properly connotes "more than just" linking a name and social security number, but also "criminal history," aliases, photographs, and any other information that the police can obtain by "search[ing] the records already in their valid possession," such as "family ties, employment status and history, financial resources, reputation, character and mental condition,[and] length of residence in the community."'' Justice Kennedy suggested that DNA is a mere relative of fingerprinting, and that its value lies in allowing law enforcement "to make critical choices about how to proceed," ensuring that the accused remains available for trial, and helping protect the public from further harm-interests that, taken together, outweighed the arrestee's privacy interests in King.

Although King would appear to narrow the availability of Fourth Amendment

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protections against invasive new technologies, three aspects of Justice Kennedy's decision distinguish DNA sampling from the dragnet-style surveillance of the general public which FRT makes possible. First, he emphasized that an arrestee's diminished expectations of privacy are distinguishable from those of "the public at large or a particular class of... law-abiding citizens."' Second, Justice Kennedy stressed that technology could progress to the point at which the Fourth Amendment balance would be struck in the arrestee's favor, such as if DNA showed a "predisposition for a particular disease or other hereditary factors not relevant to identity."' It is thus possible that the Court would condemn the warrantless use of FRT on law-abiding citizens for particularly invasive purposes. Third, a Maryland statute forbidding the use of DNA for anything other than identification "generally allay[ed] . . . privacy concerns" at issue in King. In the absence of regulatory or statutory protections, the Court might grant the Constitution a greater role in protecting particular zones of privacy from unjustified government intrusion using FRT.

Justice Scalia's dissenting opinion, joined by Justices Ginsberg, Sotomayor, and Kagan, took issue with Justice Kennedy's characterization of King's DNA matching as mere identification. Justice Scalia noted that the suspect's identity was already known when the state ran his DNA through the CODIS system long after he was arrested; the matching was thus performed in order to identify the DNA sample from the rape-not to verify identity. What DNA offers that fingerprinting does not, he added, "is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known. Justice Scalia warned that "[i]f one believes that DNA will 'identify' someone arrested for assault, he must believe that it will 'identify' someone arrested for a traffic offense."' His dissent in King is thus an acknowledgement that some constitutional limits must be placed on the uses of surveillance technologies that enable government to create new information by identifying correlations among otherwise disparate data points: "Perhaps the construction of ... a genetic panopticon is wise," he wrote, "[b]ut I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."' [416*]

III. RECLAIMING THE CONSTITUTION’S ROLE IN PROTECTING ANONYMITY

To address the privacy threats posed by modern technology, scholars have argued for recognition of a wholesale constitutional right to anonymity, as well as robust enforcement of First Amendment protections of that right in the face of widespread technological surveillance of the public. A plethora of scholarship has also arisen in response to the problems of new technologies under existing Fourth Amendment doctrine. Like Justice Sotomayor in Johnson, some commenters have called for the end of the third party doctrine, reconsideration of the case law truncating the Fourth Amendment’s reach in public spaces, and adoption of new theories for understanding the Fourth Amendment guarantee altogether. This Part seeks to reclaim the Constitution’s relevance in protecting anonymity in the digital age by identifying points at which the Supreme Court’s First Amendment cases on anonymity and its modern Fourth Amendment jurisprudence intersect. FRT and related technologies employ big data to make correlations that help predict the future in ways that were impossible only

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a few years ago. It is through such correlations that FRT enables users to recognize—versus merely see—a subject, and from that data erect a comprehensive portrait of that person’s past, present, and future life. At least three guidelines can be inferred from the Court’s Fourth Amendment cases which courts, legislators, and regulators should take into account in responding to the privacy challenges posed by such technologies’ unlimited access to the whereabouts, activities, interests, associations, and beliefs of virtually any member of society. [417*]First, the intended use of technologically derived data should be treated as a significant factor in assessing the proper constitutional, statutory, and regulatory scope of government activity that has the potential to expose an individual’s privacy to scrutiny. Second, and accordingly, the law should place boundaries around the ability of government to match faceprints with other data points for purposes other than verification of an individual’s known identity. Third, courts and lawmakers should keep in mind that legislative protection of an individual’s ability to invoke anonymity—through conspicuous and mandatory opt-out provisions for web tracking, for example—is constitutionally prudent, if not necessary.

A. Recognition Through Correlation

In both the First and Fourth Amendment arenas, the Court has treated “the right . . . to pursue . . . lawful private interests privately” as constitutionally protected from government interference. Yet it has never suggested that the public disclosure of one’s face is itself an act of constitutional dimension. In addressing anonymity, the Court has instead drawn a distinction between mere observance of “physical identities” and recognition. A stranger knocking on a door might remain anonymous even though his face is visible. A “surrender of . . . anonymity” takes place when the face is linked to other identifying information, such as a name on a pamphlet. Chief Justice Roberts extended this principle to modern technology when he emphasized in Doe v. Reed that “once on the Internet” names and addresses contained in referendum petitions could be matched with other data “in what will effectively become a blueprint for harassment and intimidation.” Similarly, Justice Alito deemed “breathtaking” the implications of the government’s ability to match referendum petition in-formation with other online data. And Justice Thomas associated chilled speech with the “advent of the Internet” and “rapid dissemination” of personal information that may be used “to threaten or harass every referendum signer. ”Forcing individuals to enable others to recognize them through public writings is anathema to First Amendment freedoms of speech and association.

That time has come. Technology has progressed to the point at which FRT and big data can be used to make predictions about people’s behavior. This occurs through the analysis of “the statistical relationship between two data values.” “[I]f A often takes place together with B,” law enforcement might conclude that “we need to watch out for B to predict that A will hap-pen.” A correlation between the two data points assumes that if one data value changes, the other is likely to change as well. In the foregoing ex-ample, B operates as a proxy for what is probably happening with A, even if A’s future activity cannot be directly observed. Target stores’ marketing toward mothers-to-be provides an impactful example of the power of big-data correlations in the private sector. By

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reviewing the shopping histories of women with baby registries, Target identified products that correlate with pregnancy and calculated “pregnancy prediction” scores for new customers; it then sent customers coupons tailored to individual due dates that it estimated with astonishing accuracy. Similarly, although a faceprint algorithm in and of itself is just a numerical record of something that has already been made public, the correlation of that data with other information for predictive surveillance is altogether different. “The data may not even explicitly seem like personal information, but with big-data processes it can easily be traced back to the individual it refers to. Or intimate details about a person’s life can be deduced.” The Supreme Court’s view that there is no reasonable expectation of privacy in things made public has thus been criticized for narrowly defining privacy as mere secrecy. Correlating an image with other data contained in a database is more intrusive than mere visual surveillance. People do not expect that many passersby recognize their faces, let alone associate them with Internet behavior or travel patterns. Even if the gathering of a faceprint from a public closed-circuit camera is unobjectionable, its correlation with other big data produces new surveillance information that the subject did not knowingly convey. [418*]

As Justice Sotomayor explained in Johnson, modern methods of government monitoring rely on data mining and storage, “proceed surreptitiously” and cheaply, and “evade[] the ordinary checks that constrain abusive law enforcement practices. ”Technology has enabled the government to “generate a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” This novel use of bits of data defies what Justice Alito called “society’s expectation . . . that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue [one’s] every single movement” over a long period of time.

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111 Mich. L. Rev. 311Michigan Law ReviewDecember, 2012ArticleTHE MOSAIC THEORY OF THE FOURTH AMENDMENTOrin S. KerraCopyright (c) 2012 Michigan Law Review Association; Orin S. Kerr

*312 IntroductionThe Fourth Amendment prohibits unreasonable searches and seizures, and the most challenging and important threshold question in interpreting the Fourth Amendment is what counts as a “search.” Identifying Fourth Amendment searches traditionally has required analyzing police action sequentially. If no individual step in a sequence counts as a search, then the Fourth Amendment is not triggered. No Fourth Amendment violation has occurred.

*313 In United States v. Madwell, the D.C. Circuit introduced a different approach, which could be called a “mosaic theory” of the Fourth Amendment. Under the mosaic theory, searches can be analyzed as a collective sequence of steps rather than as individual steps.

Identifying Fourth Amendment searches requires analyzing police actions over time as a collective “mosaic” of surveillance; the mosaic can count as a collective Fourth Amendment search even though the individual steps taken in isolation do not. The D.C. Circuit applied that test in Madwell to GPS surveillance of a car. The court held that GPS surveillance of a car's location over twenty-eight days aggregates into so much surveillance that the collective sequence triggers Fourth Amendment protection.

When the Supreme Court reviewed Madwell in United States v. Johnson, concurring opinions signed or joined by five of the justices endorsed the D.C. Circuit's mosaic theory. The majority opinion resolved the case without reaching the mosaic theory, and neither concurring opinion gave the issue extensive analysis. But Justice Alito's concurring opinion for four justices clearly echoed the basic reasoning of the D.C. Circuit in concluding that long-term GPS monitoring of a car counts as a search even though short-term monitoring does not. Justice Sotomayor's separate concurrence also voiced support for the mosaic approach.

The concurring opinions in Johnson raise the intriguing possibility that a five-justice majority of the Supreme Court is ready to endorse a new mosaic theory of Fourth Amendment protection. That prospect invites lower courts to consider whether the mosaic theory is viable and if so, how it should be applied. A handful of courts have

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begun to do so in the short time since the Court handed down Johnson, with mixed results so far. Law enforcement is *314 paying close attention as well. Soon after Johnson, the General Counsel of the Federal Bureau of Investigation informed a law school audience that the mosaic opinions in Johnson were causing significant turmoil inside the FBI.I. The Sequential Approach to the Fourth Amendment This Section explains how the sequential approach to Fourth Amendment analysis forms the building block of modern Fourth Amendment doctrine. It begins by introducing the sequential approach and then examines the three basic stages of Fourth Amendment analysis: first, what is a search; second, when is a search unreasonable and therefore unconstitutional; and third, when does an unconstitutional search justify a remedy. *315

A. Sequential Analysis in Search and Seizure LawFourth Amendment analysis traditionally has followed what I call the sequential approach: to analyze whether government action constitutes a Fourth Amendment search or seizure, courts take a snapshot of the act and assess it in isolation. The “step-by-step analysis is inherent” in evaluating Fourth Amendment claims. Analyzing whether a search has occurred requires a frame-by-frame dissection of the scene. As the Supreme Court has explained, courts focus on each “particular governmental invasion of a citizen's personal security,” starting with the “initial” step and then separately analyzing the “subsequent” *316 steps.

The sequential approach is not merely a minor aspect of Fourth Amendment doctrine. Rather, it forms the foundation of existing search and seizure analysis. The remainder of this Section explains how the basic structure of existing Fourth Amendment law rests on the sequential approach. It starts with the threshold question of defining a search, then turns to constitutional reasonableness, and concludes with Fourth Amendment remedies.

B. The Search Inquiry Under the Sequential ApproachThe Supreme Court's established methods for identifying when a Fourth Amendment search occurs reflects the sequential approach. From the 1960s until the Court's recent Johnson case, the search inquiry was governed by the “reasonable expectation of privacy” test introduced in Justice Harlan's famous concurring opinion in Matzo. Although the phrase “reasonable expectation of privacy” is notoriously murky, much of the Supreme Court's case law on the reasonable expectation of privacy test can be understood as distinguishing between inside and outside surveillance. Conduct violates a reasonable expectation of privacy when a government actor breaks into a private, enclosed *317 space, such as a home, a car, a package, or a person's pockets. The entrance into the private space exposes the contents of the private space, and the search occurs at the moment of exposure. In contrast, conduct does not violate a reasonable expectation of privacy when it consists of observing the outside of property, observing what has already been exposed to the public, or observing public spaces where anyone may travel.

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The sequential approach forms the basic unit of analysis under this traditional inquiry. To know if a search has occurred, courts ask if the government's conduct has crossed the boundary from outside to inside surveillance. So long as the government has stayed outside and acquired no information about what is inside, no search has occurred. A search only happens when the police learn about what is hidden inside a private space, whether by squeezing a duffle bag to learn its contents or aiming a thermal imaging device at a home to learn its temperature.

The sequential approach also applies to the trespass test revived in Johnson. Under Johnson, a Fourth Amendment search occurs when government actors trespass onto persons, houses, papers, or effects with intent to obtain information. The sequential approach naturally matches this traditional doctrine. A search occurs at the moment of the trespass, and it lasts for the period of the trespass. Identifying when a search occurs therefore requires analyzing the government conduct frame by frame and asking when the conduct triggers a trespass.

C. Constitutional Reasonableness Under the Sequential ApproachThe sequential approach also forms a basic part of the next inquiry: whether searches are constitutionally reasonable. *318 Reasonableness now is understood as requiring a balancing of interests: courts consider whether the government interests advanced by the use of an investigatory technique outweigh the privacy interests that its use threatens. Under this approach, reasonableness may require a warrant but may require less regulation or even no regulation at all.

Both approaches to reasonableness rest on the assumption that searches are readily identifiable acts that occur over readily identifiable periods of time. This allows courts to balance the interests for specific kinds of searches and create categories for when different searches are reasonable. A few examples demonstrate the point. Under existing Supreme Court precedent, searching a home ordinarily requires a warrant. In contrast, searching a car implicates a different balancing of interests and leads to a different *319 rule: because cars are less private than homes, searching a car requires probable cause but no warrant. A pat-down frisk for weapons implicates yet another balancing. The need to protect officers' safety alters the balance so that the police need only specific and articulable facts that a person is armed and dangerous in order to conduct the frisk.

Special rules apply in special circumstances as well. For example, the government's need to protect the federal border enables federal agents to routinely search a person and his property at the border or its functional equivalent. The need to stop terror attacks allows the Transportation Security Administration (“TSA”) to screen individuals and their property at the airport without suspicion. On the other hand, particularly intrusive searches receive heightened protection. For example, the police cannot search a person's body to retrieve evidence if that intrusion might threaten the person's health, even if they have a warrant. In each of these cases, the analysis presupposes that a search is a readily identifiable act that allows courts to analyze the strength of the

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interests in play when the government commits that kind of act.

The sequential approach also forms the foundation for the warrant requirement. The purpose of the warrant requirement is to ban unlimited searches that allow investigators to go anywhere and search for any kind of evidence. To curb this abuse, the Warrant Clause includes a particularity requirement: warrants must “particularly describ[e] the place to be searched, and the *320 persons or things to be seized.” The particularity requirement limits searches by requiring them to occur in a particular place and to look for specific evidence, such as a search of 123 Main Street for marijuana. Here the sequential approach has obvious force: the particularity requirement rests on the premise that searches are identifiable acts that occur in identifiable places to find identifiable evidence.

[…]

C. The Supreme Court's Opinions in Johnson

Justice Alito's analysis is cryptic, in part because this section of his opinion cites no authority. At the same time, his opinion echoes the D.C. Circuit's mosaic approach in Madwell. Like the D.C. Circuit, Justice Alito concluded that long-term GPS monitoring constituted a search while short-term monitoring did not. More broadly, by shifting the probabilistic inquiry from what a person might expect the public to see to what a person might expect the police to do, Justice Alito introduced the element of time, which is critical to the mosaic approach. Justice Alito analyzed the constitutionality of the monitoring in Johnson by asking if the entirety of the monitoring over twenty-eight days exceeded societal expectations. Implicitly, the unit of the search was a collective whole over an extended period of time.

The fifth justice to touch on the mosaic theory was Justice Sotomayor. Justice Sotomayor joined the majority opinion and also agreed with Justice Alito that use of a GPS device constituted a search, independent of its installation. Justice Sotomayor reasoned that “the unique attributes of GPS *321 monitoring”--its precision, detail, and efficiency--should guide the constitutional analysis of its use.

This passage clearly echoes the mosaic theory. Justice Sotomayor focuses on whether a person has Fourth Amendment rights “in the sum” of their public movements, rather than in individual movements. Second, Justice Sotomayor asks whether people reasonably expect that their movements not only will be recorded but also “aggregated.” This is the language of sums from the mosaic theory, not the language of individual acts from the sequential approach.

Despite the differences, both of the concurring opinions in Johnson analyze the collective sum of government action, rather than individual sequential steps, to determine what counts as a Fourth Amendment search.

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55 Ariz. L. Rev. 201Arizona Law ReviewSpring, 2013Note

*203 SAVING FACE: REGULATING LAW ENFORCEMENT'S USE OF MOBILE FACIAL RECOGNITION TECHNOLOGY & IRIS SCANSSabrina A. LochneraCopyright (c) 2013 Arizona Board of Regents; Sabrina A. Lochner

Introduction

While the Federal Constitution's Fourth Amendment provides a baseline level of protection against unreasonable searches and seizures, state legislatures can impose stricter safeguards. As technology advances or comes into general use, the public's reasonable expectation of privacy can diminsh. Thus, states should be wary as to what degree of erosion to permit.

Law enforcement agencies, civil liberty groups, and legal scholars recognize that police might abuse the biometric-based identification device and infringe on the public's privacy rights. Thus, some law enforcement groups have created self-imposed guidelines for when law enforcement officers can take facial pictures and iris scans and run them through the databases. But, these guidelines *204 are insufficient; law enforcement lacks accountability to comply, and some policy concerns, such as misuses and biases, remain unaddressed. Developing guidelines for how police should use MORIS remains “a moral responsibility.”

I. Development of Facial Recognition Technology and Iris Scans

Using FRT, police can determine someone's identity by running a photo of that person's face through a database. The computer program matches the unidentified face with a picture, name, and criminal record of someone already in the database. The program works by calculating the distances between facial features, such as one's eyes. Next, it uses an algorithm to see if any pictures in the database match the facial measurements in the provided photo. Police thus use FRT to identify people who are not carrying identification cards or those who are carrying false identification. FRT also helps police learn the identity of persons from afar to see if warrants are out for their arrest or if they are on watch lists. A serious concern arises, however, because police have not always warned the public when they are using FRT.

As the technology has advanced, however, FRT has become more reliable and mobile.

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For example, the American military began using a multi-modal device called Handheld Interagency Identity Detection Equipment (“HIIDE”) in 2007. This allowed soldiers to take facial pictures, iris scans, and fingerprints in the field and compare the gathered information to a database; the comparison let soldiers see if the person being scanned was on a watch list and allowed the soldiers to determine the person's identity. If the person did not appear on a watch list, the soldier could save that person's information. By the end of 2009, soldiers in Iraq and Afghanistan were using more than 7,000 HIIDE devices to distinguish insurgents from civilians and to enroll them into the database. Despite Afghans' concerns that the biometric database--operated by the United States, NATO, and local groups--could be used against them as an ethnic, tribal, or political weapon, the American military continued to collect biometric information from Afghans and Iraqis in 2011.

II. Fourth Amendment Background

The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures and requires probable cause before a judge can issue a warrant. The warrant must detail the place to be searched and the things to be seized. “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” To determine if something is a search and deserves Fourth Amendment protection, courts employ the reasonable expectation of privacy test from the concurrence in United States v. Matzo.

If a person exhibits a subjective expectation of privacy and society sees that expectation as reasonable, then police interference with that expectation is a search. If there is no subjective and objective expectation of privacy, then Fourth Amendment protections do not apply; it is not a search for the police to obtain that information. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” To determine whether someone has a reasonable expectation of privacy, the Supreme Court has held that if a person exposes something to a third-party, he assumes the risk that it will be exposed to law enforcement. For example, in United States v. White, a person assumed the risk and had no reasonable expectation of privacy to *205 incriminating information he revealed to an informant, who was transmitting the conversation to police.

More recently, the Supreme Court held in United States v. Johnson that when police attached a Global Positioning System (“GPS”) device on someone's car and tracked the vehicle on public streets for 28 days, this constituted a Fourth Amendment search. The majority utilized a trespass test--that exists concurrently with the Matzo test--and found that placing a GPS device on a car to track a person's whereabouts was a search. The Court said it should apply “an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection [the Fourth Amendment] afforded when it was adopted.” The Court affirmed that visual observation is not a search; however, the Court did not answer whether electronic surveillance that is not a *206 trespass, but that lasts for an extended period of time, could be a search. Viewing the majority and concurring opinions together, scholars think the Court may be

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ready to adopt a “mosaic theory” of the Fourth Amendment.

The mosaic theory approach would evaluate the sum of law enforcement actions over a period of time to determine if a reasonable expectation of privacy exists. Police using GPS for a day to track someone may not be a search, but if police use GPS surveillance for a month, the non-search may become a Fourth Amendment search. As the government combines individual parcels of information, the collective information may gain greater meaning and become more intrusive. Essentially, the mosaic theory would require courts to look at the “collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.”*207

III. How the Supreme Court has Applied the Fourth Amendment to Other Technologies that Collect Biometric Information

A. Fingerprints

For law enforcement to take fingerprints in the field, the Court has suggested that the officer must have at least reasonable suspicion that the person to be fingerprinted has committed a crime or is committing a crime. Also, the officer may only take the fingerprints if they will reasonably show whether the person was connected to the crime. Fingerprinting does not probe “into the private life and thoughts” of a person, so it “represents a much less serious intrusion upon personal security than other types of searches and detentions.” However, under the Fourth Amendment, the Court has held that probable cause is necessary to detain an individual, force him to travel to the police station, and make him submit to fingerprinting. But the Arizona Court of Appeals has *208 concluded that police should not collect fingerprints from an undetained person, such as a victim, on anything less than individualized reasonable suspicion.

The gathering of fingerprint evidence from ‘free persons' [as contrasted with those in custody] constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person's connection to the offense.

B. Voiceprints

Unlike bodily intrusions, such as collecting blood, the Supreme Court has held that obtaining bodily information from someone that the public consistently sees or hears does not constitute a search under the Fourth Amendment. For example, “[l]ike a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect his face will be a mystery to the world.”

C. Blood, Urine, and DNA Samples

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It is a Fourth Amendment search for police to collect a person's blood or urine, because these are not usually exposed to the public and people have a reasonable expectation of privacy in them. But under certain conditions and in certain jurisdictions, police may reasonably collect blood without a warrant. For instance, in Schmerber v. California, the Court held that it was reasonable under the Fourth Amendment for police to withdraw blood involuntarily and without a warrant when they had probable cause that someone had been driving while intoxicated and police had arrested the person. The Court justified the bodily intrusion by reasoning that the police needed to gather evidence before the alcohol in the blood dissipated. The Court weighed how a blood test affected the suspect's health, the extent to which it would intrude on the person's personal privacy and bodily integrity, and the state's law enforcement interest. In Arizona, however, a heightened standard exists; police can ask a person arrested *209 for driving under the influence to submit to a blood test, but police generally may not administer the test absent a warrant, unless the subject has given consent.

Urine samples also intrude on reasonable expectations of privacy, so they are Fourth Amendment searches. But, urine samples can be reasonably collected without a warrant so that law enforcement can perform a “special needs” function that goes beyond simple law enforcement, such as ensuring that employees in safety-sensitive jobs are not intoxicated.

Taking and analyzing DNA or saliva is also a Fourth Amendment search, but it can be reasonably done without a warrant where there is minimal intrusion and a legitimate government interest. The Supreme Court has not heard a DNA collection case, but the “U.S. Courts of Appeals for the First, Second, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits [each] upheld the 2004 version of the federal DNA collection law, which authorized collection and analysis of DNA from people convicted of any felony, certain sexual crimes, and crimes of violence.” Federal courts of appeals have also upheld state DNA-collection laws. The rationale for these rulings is that collecting DNA from inmates to create a law enforcement database is justified in part because inmates have diminished privacy protection.

IV. Applying the Fourth Amendment Analysis to MORIS and Recognizing Privacy Concerns

A. Mobile Facial Recognition Technology

Applying the Matzo reasonable expectation of privacy test to FRT, a court will likely find that it is not a search for an officer to take a picture of someone's face and run it through a database to find a match. Given that a person exposes his face to the public daily, privacy of facial characteristics is not a right the public will likely recognize as reasonable. Just as it is not a search for police to take aerial photographs of a manufacturing plant, it cannot be a search to take pictures of people's faces in public places.

*210 Arguably MORIS's FRT is a search because mobile FRT is not in general use and

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the photos reveal intimate details not visible without sensory-enhancing technology. But this argument would likely fail because FRT reveals facial details, which are less intimate than aerial photos that can reveal an industry's trade secrets. Additionally, the Court in Camden relied on a thermal imager's intrusion into the home to find that the use of the technology constituted a search seemingly more than the technology's novelty. Although the Supreme Court has indicated that it will tend to treat items not widely used by the public as searches, the Court gives this consideration little weight. After all, in Dow Chemical Co. it was a non-search for police to be taking pictures with a $22,000 aerial camera. Thus, there is little traction for the argument that using MORIS is a search because it is not in general use.

Interestingly, FRT takes the photograph a step further and runs it through a database to see if there is a facial match. Most circuit courts have shown that it is lawful to run legally obtained information through a database. In United States v. Ellison, the Sixth Circuit held that police running a license plate number through a database did not trigger the Fourth Amendment. There was no reasonable expectation of privacy in the license plate number, which the police observed from a lawful vantage point. Thus, some law enforcement agencies have begun using an Automated License Plate Recognition program, which attaches a camera on top of a police car and runs every license plate it detects through an FBI hotlist to ascertain information, such as whether the car is stolen. These agencies have used picture-taking and database-running technologies without probable cause or even reasonable suspicion regarding a particular car. Similarly, if law enforcement were to use MORIS from a lawful vantage point, Fourth Amendment protections probably would not be implicated; neither probable cause nor reasonable suspicion would be required to collect facial pictures and to run searches.

Although FRT is a biometric form of identification, it is distinguishable from fingerprints, bodily fluids, and DNA. First, fingerprints, bodily fluids, and DNA are not as obviously exposed to the public, so there is a heightened expectation of privacy. Second, bodily contact with the suspect is generally required to acquire these identifications, unlike a photograph. Third, DNA can *211 reveal one's “diseases, traits, and predispositions” in addition to information about those in the person's bloodline. Looking to the identification measures discussed in Part III as a guide, FRT probably is not a search that requires probable cause, reasonable suspicion, or consent.

At first glance, Johnson seems to lay the groundwork for classifying FRT as a Fourth Amendment search: FRT may not give people the minimum degree of protection the Fourth Amendment originally intended. But this interpretation is flawed. First, the majority emphasizes “that mere visual observation does not constitute a search.” Second, Johnson finds it determinative that the police placed a physical device on someone's car and “occupied private property for the purpose of obtaining information.” Conversely, FRT does not require a physical trespass and taking and analyzing these pictures could be categorized as “mere visual observation.” Thus, under both the trespass test and Matzo test, FRT is not likely to be a Fourth Amendment search.

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Perhaps the Court would be more willing to classify FRT as a search under the mosaic theory that five Justices in Johnson seemed ready to adopt. If police use FRT pervasively and without even reasonable suspicion, this presents a question similar to that left open in Johnson: whether to treat prolonged electronic surveillance without an accompanying trespass as a search. Although the mosaic theory seems like the most viable avenue for classifying certain FRT use as a Fourth Amendment search, the Supreme Court has yet to authenticate the test. Hence, legislators are probably best equipped to protect the public's privacy from the police's use of sense-enhancing technology.

V. Policy Concerns Weigh in Favor of State Legislative Regulation of MORIS

The mobility of MORIS makes it impracticable for citizens to avoid police using the technology; there is no opt-out option. And MORIS's design leaves room for police bias and error in its operation. These biases manifest themselves in the form of discriminatory targeting, racial bias, and context bias. This means that police may more frequently use MORIS to identify certain groups of people without oversight; police may not be able to correctly identify the facial features of a person of another race to make accurate identifications; and outside distractions may cause the police to make incorrect identifications. The technology also does not eliminate errors inherent in lineups or the possibility of the data being collected and stored for unanticipated purposes. Lastly, the facial and iris databases are unregulated and have no guidelines for how to enroll new persons. This Part addresses each of these policy concerns and proposes regulatory solutions.

A. Lack of Notice or Opt-Out Option

The mobility of MORIS does not give citizens notice of the device's use or the ability to opt out of getting scanned in the way stationary checkpoints allow. If using FRT is not a Fourth Amendment search, and probable cause or reasonable suspicion is not a prerequisite to data collection and use, then the police can legally take a picture of anyone and run it through the database without suspicion that the person has done something illegal. Although people can opt out of going to sporting events or airports to avoid FRT and iris scans, people cannot opt out of going about their daily lives. Thus, no matter where one goes in the United States, the possibility exists that an officer may use MORIS to take a picture and run it through a database to learn that person's identity and criminal history. Because the device works from 5 feet away, this investigation could be done secretly. Just as covert GPS tracking can “alter the relationship between citizen and government in a way that is inimical to democratic society,” covert FRT could similarly sabotage this relationship.

B. Discriminatory Targeting and Racial Bias Concerns

Moreover, unlike a stationary checkpoint, where all who pass by are subject to FRT, MORIS's portability grants police discretion in deciding whom to identify. Without guidelines, nothing prohibits police from acting on potential *212 racial, gender, or class

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biases. Legally, law enforcement could primarily run pictures of a certain type of person, without justifiable cause. Jay Stanley, an ACLU senior policy analyst, worries about the new type of “facial profiling” MORIS could create.

Not only may police take pictures discriminatorily, but a racial bias also may arise while police search for a match. MORIS finds the three most similar faces and displays these headshots on the screen; however, an officer makes the final selection as to which picture matches the person he is trying to identify. If the police officer is of a different race than the person to be identified, the officer may not make this selection accurately.

Psychology studies show that people can more accurately recall specific faces if they are of their own race rather than of another race. Due to the “other-race effect,” people outside one's own race subjectively look more alike unless that person has had ample exposure to another race. A Northwestern University study shows that the brain encodes same-race faces with an emphasis on unique identifiers; however, the brain does not encode other-race faces with this level of detail. “Consequently, we have poorer memory for other-race faces, and are therefore less likely to [[recognize] them or to distinguish between them.”

Lay witnesses have made inaccurate lineup identifications because of the other-race effect. In 1984, an innocent man was convicted of rape after the *213 victim, of another race, identified him as the perpetrator. When the man was exonerated though DNA evidence, the victim said that the other-race effect contributed to her misidentification. Given that MORIS creates a photographic lineup with the three most mathematically similar faces and that people struggle with distinguishing another race's facial features, the Arizona legislature should give police procedures to follow when making the final match.

The other-race bias can be reduced by informing the witness of the potential bias and by telling the witness to look for individual facial features instead of looking at the face as a whole. In one study, researchers eliminated the other-race bias by giving these warnings before the brain could encode the face. To ensure more accurate identifications, officers using MORIS should be required to learn about other-race bias and how to look for unique features on faces of other races.

C. A Potentially Unduly Suggestive Lineup and Unreliable Identification

MORIS seemingly creates a de facto lineup in the field where police must identify a person from three photographs returned after a database search. Therefore, the procedures police follow in true lineups should be analyzed to see if officers are taking necessary steps to ensure that MORIS's identifications are not unduly suggestive or unreliable. In particular, police should make MORIS identifications in compliance with the Biggers factors to facilitate reliable identifications.

When police conduct photographic lineups and allow witnesses to identify whom they saw commit a crime, the procedure must not be unduly suggestive. If an identifying

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procedure draws attention to a lineup participant as if to say that person committed the crime, the resulting identification usually must be suppressed to avoid mistaken identification and a denial of due process. In Foster v. California, for example, the police placed the key subject in a lineup, conducted a one-to-one confrontation, and led another lineup with only that suspect returning. “The suggestive elements in this identification procedure made it all but inevitable that [the witness] would identify petitioner whether or not he was in fact ‘the man.”’

*214 Showing a single picture to a witness, or undercover officer, can be mildly, and not unduly, suggestive if displayed under mitigating circumstances. For example, the court in Manson v. Brathwaite noted that there was “little urgency and [the officer] could view the photograph at his leisure. . . . The identification was made in circumstances allowing care and reflection.” Even though the undercover officer was only shown one photograph, the lineup was not unduly suggestive because the person making the identification had less pressure to agree with the photo because he had time to reflect.

Regardless of suggestive lineup procedures, the trial court must admit pretrial identifications into evidence if they are reliable under the totality of the circumstances. To determine reliability, the court employs the Biggers five-factor test.

[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Strong reliability in one factor may compensate for a weakness in another factor.Where only one photo was shown to an officer to see if he could identify the suspect, the Court held this to be mildly suggestive, but it was still admissible because it was reliable. It was reliable because (1) the officer saw the assailant for two to three minutes in natural light; (2) the officer was trained to pay attention to detail and be attentive; (3) the physical description initially provided matched the photograph; (4) the officer had 100% certainty that the man in the photo was the same as the one he witnessed commit the crime; and (5) the photographic identification was made two days later so as not to allow the officer to forget the suspect's appearance.

After taking a picture of someone's face with MORIS and running it through the database, the officer gets three images that most closely match that face via mathematical algorithms. Because the officer evaluates which photo best resembles the person whose photo was taken, MORIS creates a photographic lineup where law enforcement steps into the shoes of a witness. For *215 accuracy, identifications made by officers via MORIS should be held to similar standards as identifications made by witnesses via lineups.

MORIS's current identification procedure may be unduly suggestive--an officer could be overly confident in his reliance on technology and feel as though the person standing in

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front of him is definitely a match to one of the photographs MORIS displayed. Granted, MORIS does not return a single picture, but it does return the three most mathematically similar pictures out of the hundreds analyzed.

Because an officer only receives three pictures, there may be a problem with the officer using a “relative judgment process” whereby the officer selects the photo that looks most similar to the person law enforcement is trying to identify, relative to the other options.181 Even if the person to be identified is not among the photographs MORIS loads, “the relative judgment process will nevertheless yield a positive identification because there will always be someone who looks more like the culprit than do the remaining lineup members.” Police could potentially arrest an innocent person and unreasonably restrain his freedoms if they make an incorrect identification. However, if the officer compares each MORIS option directly with the original photo or with the person's facial appearance in real-time instead of comparing the options among each other, this “absolute judgment” would reduce the unduly suggestive aspects of MORIS.

Given that the de facto photographic lineup occurs in the field, the officer may feel added pressure to quickly make a selection, which could lessen the identification's accuracy. Unlike in Manson, where the officer could analyze a photograph leisurely, the use of MORIS in the field could hasten analysis; an officer may quickly select the most similar photo to see that person's criminal history to determine if there is a safety threat.

To determine if lineup identifications are reliable, and thus admissible, courts weigh all factors of the Biggers test. Admittedly, this Note's analysis does not concern introducing MORIS identifications into evidence. Nonetheless, this *216 Note considers the Biggers test and undue suggestiveness to analyze how identifications made through lineups are either reliable or unreliable. This is important because police using MORIS essentially engage in a photo lineup as the final step in identification.

An officer who obtains consent to take a picture and then runs it through the FRT database will likely get a good look at the subject's face and make a highly certain, immediate, and accurate identification. However, in certain circumstances, the officer's actions may not satisfy the Biggers factors. For instance, if a picture is taken under poor conditions, such as in a dimly lit area; if the officer has minimal opportunity to view the suspect; or if the officer is not particularly attentive to the subject or picture loaded into MORIS because of distracting events, then the identification may not be as reliable.A statute passed by the Arizona legislature should ensure that officer identifications with MORIS comport with the Biggers factors and are reliable. The pictures that load on MORIS should be big enough to give the officer ample opportunity to study the face and make a match. The officer should also minimize distractions and attentively study the pictures to choose a match. The statute should require a baseline percentage of certainty by the officer before selections. The statute further requires MORIS-based identifications to be made by police officers; law enforcement should not be allowed to show the MORIS photographs to lay witnesses at the scene and ask which picture they think most resembles the suspect.

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Face-Recognition Surveillance: A Moment of Truth for Fourth Amendment Rights in Public PlacesBy: Douglas A. Fretty 16 Virginia Journal of Law & Technology 3Fall 2011

II. PRESENT AND FUTURE USES OF FRT

[3*] Parts III-V of this article evaluate how FRT comports with U.S. privacy law, but first it is worth noting what traditional privacy interests are threatened by an expansive state use of FRT. Two distinct privacy interests at stake are dignity and control of access. The theory that privacy has inherent worth because it preserves human dignity was first offered in 1964 by Edward J. Bloustein. Bloustein observed that when a person’s actions or personality are subject to a threshold level of scrutiny, the person’s concept of himself as autonomous and independent dissolves. Under this theory, the question is whether Americans’ being facially identified in public, and subject to scrutiny by government officials, would erode their self-image as autonomous personalities. A second school of commentators argues that one’s ability to control the access that others have to him/her is a fundamental human interest, and that privacy rights are the guardian of that interest. This theory holds that people need a certain dominion over when and whether they will interact with others, and that secrecy, anonymity, and solitude are the tools with which we exercise that dominion. FRT, then, threatens privacy if it removes peoples’ expectation of secrecy, anonymity, and solitude while moving in the public sphere.

Whether we can exercise our privacy interests also impacts our enjoyment of liberty. Michael Foucault famously argued in Discipline and Punish that a system capable of locating a person, identifying him, and classifying him as a threat to society is functionally a prison. Building on philosopher Jeremy Bentham’s concept of the Panopticon—a prison where the inmates are cowed into self-regulation because they never know when they are being watched—Foucault concluded that modern surveillance causes citizens to moderate their public behavior. If surveillance were to saturate public life, the result would be “an interrogation without end,” a society-wide panopticon. A common extension of this thesis is that people’s awareness of surveillance causes them to forego not only illicit conduct but also legitimate conduct. When citizens behave with the goal of appearing unimpeachable to authorities, their suppression of lawful acts endangers [4*] healthy dissent, nonconformity, and iconoclasm. This liberty-endangerment will always lurk in the background of any court’s analysis of FRT and the Fourth Amendment.

III. WHEN THE GOVERNMENT IDENTIFIES YOU BY YOUR FACE: SEARCH-AND-

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SEIZURE IMPLICATIONS

Given the privacy and liberty interests at stake, will FRT’s use as a tool of the state be checked by the Fourth Amendment’s prohibition on unreasonable searches and seizures? Courts have not yet addressed the issue, but this Part finds that FRT occupies the vanguard in several search-and-seizure issues.

Legal scholars have criticized the reasonable expectation test for exerting “a one-way ratchet against privacy” rights. As technology continues to enhance government’s power to monitor the public square, citizens’ expectations of shielding information from the state’s view necessarily diminishes. Today, air travelers may feel invaded by airport body scanners that display images of the naked traveler to security officers; however, so long as travelers endure the process, the Fourth Amendment is not implicated. Seen this way, Harlan’s test sets no limit on how much the government can erode our access to secrecy and anonymity while moving outside the home. Advocates of law enforcement discretion cheer at the prospect of a more-monitored public space, arguing that expectations of anonymity or secrecy facilitate criminal behavior and should be abrogated. Regardless of ideology, scholars agree that advances in surveillance could soon winnow Fourth Amendment protection in public to a nub, if the reasonable expectation test continues to be literally applied. This risk that technology will “outflank” the search-and-seizure clause is no more salient than in the face-recognition.

A. Is a Single Facial Identification in Public a Search?’

1. FRT as Analogous to Conventional Surveillance

Challengers to FRT should engage the Harlan standard head-on by demonstrating that Americans reasonably expect not to be identified in public by sophisticated algorithms. Indeed, the Court has at times cast itself as a bulwark against novel technology that takes away privacies we once took for granted. As evidence that people expect a degree of anonymity while moving in public, civil libertarians could point to the popular outcries that often accompany a city’s installation of face-recognizing cameras. Public reaction to Tampa Bay’s use of FRT at the Super Bowl was overwhelmingly negative; the subsequent installation of FRT cameras in Tampa’s nightlife district prompted vociferous protests, effectively ending the city’s FRT experiment two years later. [5*]

In August 2010, the D.C. Circuit in United States v. Madwell held that police could not track suspects via their cell phone records without a warrant. The holding was despite the government’s truthful argument that a cell phone company could easily track any subscriber’s movements by cataloguing the cell phone towers that received the subscriber’s signal. Madwell reviewed the Court’s important “reasonable expectation” cases and concluded: “In considering whether something is ‘exposed’ to the public . . . we ask not what another person can physically and may lawfully do but rather what a reasonable person expects another might actually do.” Were the D.C. Circuit to review state-run FRT, the inquiry would then be whether D.C. pedestrians expect their fellow

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travelers to discover their identities via FRT software. Three weeks after Madwell, a district court followed its result, emboldened by “several rulings in recent years” that reclaim domains of personal privacy threatened by encroaching technology. Though the Madwell reasoning is for now the minority view, it reflects a broadly felt instinct to reclaim the reasonable expectation test as a guardian of Fourth Amendment rights in public spaces. Face-recognition challenges offer the potential to push Madwell further into the mainstream.

2. The Dragnet Problem and the Analogy to Stop-and-Question Cases

In some respects, state use of FRT resembles a police practice that the Supreme Court considers an unreasonable seizure: where police stop a pedestrian without individualized suspicion and force him to answer questions. In the 1979 case Brown v. Texas, officers stopped a man on the street because (1) the area was known for drug trafficking, (2) the man was unfamiliar to the officers, and (3) the man had walked away from another person. When the man refused to give his name to the officers, he was arrested. The arrest was unreasonable, the Court held, because it subjected civilians to “arbitrary invasions solely at the unfettered discretion of officers in the field.” Yet as subsequent Courts have mulled over [6*] Brown’s meaning, they have not signaled whether the violation stemmed from the forced identification of Brown, or the forced stopping of Brown. If the former, then FRT is a species of seizure, because it virtually coerces a pedestrian to identify himself; if the latter, FRT is not limited by Brown, because it never delays the pedestrian’s locomotion.

Read pragmatically, however, the stop-and-question decisions were written when the government was physically unable to check someone’s identification without stopping him. FRT changes that, and civil libertarians could argue that what truly animated Brown was the concern that people would have no choice in whether to identify themselves to police. According to Justice Stewart, when a random citizen makes a statement to police, the constitutional question is “whether it was made voluntarily,” with no violation “[a]s long as the person to whom the questions are put remains free to disregard the questions . . . .” Delgado too emphasized that when a person has no choice but to answer police questions, a seizure has occurred. However, the only such scenario that Justice Rehnquist could imagine in 1984 was where “the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded . . . .” FRT elides the need for such an intimidating atmosphere: by stepping in front of a face-identifying camera, a civilian is matched not only with his state-owned photograph but also any data associated with his name—residence, welfare status, employment, social security number, tax history, criminal record, child support compliance, etcetera. This new reality could urge courts to implicate Brown wherever surveillance forces a civilian to surrender personal information that would otherwise have remained unknown but-for a physical stop.

B. Would Cross-Referencing of Facial Identifications Create an Unreasonable Search?

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1. Community Expectations of Locational Privacy

A challenge to long-term FRT monitoring would necessarily inquire into the social norms of locational privacy, and there is ample evidence that Americans do not expect or want FRT to assemble rich, long-lasting personal profiles. In 2003, upon learning details of DARPA’s Terrorism Information Awareness (TIA) program, Congress passed a resolution forbidding TIA’s use against U.S. citizens residing in America, absent Congressional approval. Scholars assert people’s strong interest in attending public events that reveal their political or [7*] social sympathies without fear of being systematically recorded, and government monitoring of political protests inevitably attracts scandal. When the Department of Defense instated “TALON,” a program for gathering attendee information at anti-military gatherings, the press coverage was almost entirely hostile, and several Congresspersons called for public hearings into TALON’s methods. When the ACLU sued for an expedited FOIA request disclosing TALON files, a district court granted the request, holding that the public has a “compelling need” for the information, and that delay could “reasonably be foreseen to cause a significant adverse consequence to a recognized interest . . . .”

A recent controversy at Apple illustrates the public’s distaste for location-based data aggregation. In April 2011, security researchers discovered hidden code in the popular iPad and iPhone that stored the devices’ “precise geographical location … marked with a timestamp.” The ensuing wave of negative press prompted varying defenses from Apple, including: (a) geographic information sent to Apple is not as precise as that stored on the phone; (b) the data are “anonymized” rather than associated with the particular customer; (c) some of the software’s location-tracking is caused by a “bug;” and (d) in the future, such data will be stored for no more than seven days. Nonplussed by the company’s statements, members of Congress pressed Apple executives to testify under oath on the issue, signaling a belief that their constituents value locational privacy.

Primary sources from the federal government reveal that government attorneys probably regard the aggregation of personal data—particularly locational data—as compromising Fourth Amendment rights. As reported by The New York Times, Pentagon guidelines require the deletion of information about anti-military protesters “within three months if they [do] not pose a security threat.” Furthermore, in its TIA Report, DARPA was disarmingly upfront about the constitutional threats posed by HumanID and other tools. Among the “most important” privacy concerns the Report identified was:

[a]ccess to aggregate individually identifiable information. Even when individual items of data are not particularly sensitive, access to an aggregation of significant quantities of personal data on specific persons represents opportunities for . . . unwarranted intrusion into personal matters.

DARPA tacitly admitted that if a HumanID program causes surveillance tapes to

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be retained and analyzed for long periods, the government’s Fourth Amendment position weakens markedly. These [8*] sources could liberate federal courts to follow the Madwell line and disallow warrantless aggregation of FRT data that draws an “intimate picture” of a subject’s life.

VI. CONCLUSION

As innovations in digital surveillance have accelerated, fundamental uncertainties have emerged in Fourth Amendment jurisprudence. The fault lines of contemporary search-and-seizure law expose such questions as: whether we enjoy a reasonable expectation of anonymity in public, whether a person can be virtually “seized” by sophisticated technology that does not impede movement, and whether people truly cede privacy expectations in data revealed to ISPs. Face-recognition surveillance necessarily confronts each of these questions head-on, and, as a result, a constitutional challenge to this new technique may serve as a harbinger for the Fourth Amendment’s ambit in the digital era. Courts will use the opportunity either to shore up the “right of the people to be secure,” or to admit how little the Amendment safeguards once we emerge from our homes.

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20 J. Marshall J. Computer & Info. L. 471John Marshall Journal of Computer & Information LawSpring 2002CommentO'BIG BROTHER WHERE ART THOU?: THE CONSTITUTIONAL USE OF FACIAL-RECOGNITION TECHNOLOGYSusan Mccoyd1Copyright (c) 2002 John Marshall Law School; Susan Mccoy

*485 A. Privacy1. Based on the Rules from Matzo and Camden, Facial-Recognition Technology Does Not Invade Privacy

a) No Legitimate Expectation of Privacy in Public Places

No individual can reasonably expect to maintain privacy in a public forum. Facial-recognition technology will be implemented in public places, such corporate and government buildings, busy sidewalks, sports events and airports. These public places are analogous to open fields. Courts have held there can be no legitimate and reasonable expectation of privacy in an open field. Therefore, the use of facial-recognition technology, when used in public locations similar to those mentioned above, does not violate the Fourth Amendment because there cannot be a reasonable expectation of privacy in public places.

The use of facial-recognition technology is distinguishable from the technology used in Matzo, which held a warrant was required for the wiretapping to be a constitutional search. Facial-recognition is based on visual surveillance, which has long been held not to fall within the scope of the constitution, rather than a wiretap. Therefore, facial-recognition technology does not violate privacy rights.

The use of facial-recognition technology can also be contrasted from the thermal image technology used in Camden. First, facial-recognition technology does not intrude into the interior of a private residence, but is utilized only when the suspect reveals himself to the public. In fact, it is extremely non-intrusive because the software can scan a crowd without requiring active participation from an individual.

Secondly, video surveillance is not a search regulated by the Fourth Amendment because it is capturing exactly what the naked eye beholds. *486 The technology used in Camden did not enhance a human's natural vision, but detected infrared radiation, which is invisible to the naked eye without advanced electronic assistance. The reasoning behind this rule is that “[w]hat a person knowingly exposes to the public. . . is

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not a subject of Fourth Amendment protection.” The purpose of facial-recognition technology is not for identifying individuals within their homes. This type of usage is illogical. If law enforcement need to implement facial-recognition technology on a private residence, the identity of the individual living in the home would already have been ascertained. As a result, facial-recognition technology would not be necessary and, therefore, the sanctity of the home will be protected.

Furthermore, facial-recognition technology is constitutional under the rule established in Camden. Camden holds that a warrant is necessary if the government employs a device not readily available to the general public to gain information about a private residence that would normally require physical entrance. Facial-recognition software is available to the general public because it can be purchased at local computer or electronics stores for only a hundred dollars. As a result, the implementation of facial-recognition technology conforms to the rule in Camden.

b) Expectations of Privacy from the Use of Facial - Recognition Technology are Not Recognized as Reasonable by Society

Society will not recognize an expectation of privacy from the use of facial-recognition technology as reasonable. This is the result of our society's awareness of the world outside the United States' borders. Due *487 to the current events in this country, our society is more prepared than ever to take whatever means are necessary to protect us and our families. This issue relates to the second prong of the expectation of privacy test set forth in Matzo, which is whether society will recognize the particular expectation of privacy held by an individual as reasonable.

The use of facial-recognition technology will not be considered by society as a violation of the Fourth Amendment because there are no reasonable expectations of privacy in public places and facial-recognition technology is used in public places. The benefits of implementing facial-recognition technology are far more important than benefits of rights to privacy in public places. Therefore, the people of this country are not willing to protect such privacy at the price of risking their safety. This country is embroiled in a new war where information intelligence is essential to our success. Society recognizes the need for monitoring public locations in order to locate criminals and known terrorists and promotes facial-recognition technology for its ability carry out that responsibility. *488

2. Comparing Facial-Recognition Technology to Existing Criminal Procedures

The foundation of facial-recognition technology is similar to a police officer standing in a crowd with a stack of mug shots and comparing them to people who walk past him. The technology is enhancing the *489 basic human skill of matching faces to identities in pictures. In fact, a computerized method of matching faces has a high probability of being more accurate than the law enforcement officer's own eyesight and judgment.

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Facial-recognition technology does not violate privacy rights because it is merely making a procedure currently used by law enforcement more efficient.

Facial-recognition technology is also similar to fingerprinting, which has been used to identify perpetrators of crimes for over a century. Fingerprinting compares prints that have been pulled from objects with a database of other prints. This is the same basic procedure used in facial-recognition technology, which matches faces to identities within its own database. Fingerprinting is a law enforcement procedure that has been authorized by statutes and been used for a hundred years. Facial-recognition technology does not violate privacy rights because it employs the same procedures as fingerprinting. If fingerprinting does not violate the constitution, then neither should facial-recognition technology.

B. Proposals for Legislation on Facial-Recognition Technology

Along with privacy advocates, the Biometrics industry is also calling for legislation on the use of sense-enhancing technology. There are two general issues that must be addressed in regards to legislation on *490 this subject, scope and regulation. The solution to the debate between privacy and the need for adequate and effective security measures can be resolved with appropriate legislation.

1. Scope

It is imperative that legislation defines the scope broadly enough to ensure the technology can be used effectively, but not so broad as to trample upon reasonable expectations of privacy. In order to prevent invasions of privacy, Congress should reiterate that warrantless sense enhancing searches should only be implemented in public places or open spaces, where expectations of privacy are minimal. Requiring law enforcement officers to obtain warrants for searches not conducted in public places protects the privacy of an individual not exposed to public view. Moreover, visual surveillance systems, which operate with facial-recognition software, should be openly exposed to the public's view and not secretly placed.

Furthermore, legislation on this issue should disallow stockpiling identifications of innocent individuals who, by chance, cross the camera's field of vision. There is no present purpose for these systems to automatically retain such information and privacy advocate's fears will be substantially subsided. However, legislation should not prevent companies from storing identities in databases as long as permission is received from each individual.

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D.C. Circuit Deems Warrantless Use of GPS Device an Unreasonable Search. — United States v. Madwell, 615 F.3d 544 (D.C. Cir.), reh'g en banc denied, No. 08-3034, 2010 WL 4703743 (D.C. Cir. Nov. 19, 2010), cert. denied, No. 10-7102, 2010 WL 4156203 (U.S. Nov. 29, 2010)

Source: Harvard Law Review, Vol. 124, No. 3 (JANUARY 2011), pp. 827-834 Published by: The Harvard Law Review Association

[827*] The Fourth Amendment has proved a constant source of consternation for courts attempting to reconcile its proscriptions with the rapid advance of technology. In defining the contours of an "unreasonable search[]," courts have found that tracking mechanisms are especially challenging to categorize, as electronic surveillance mimics visual surveillance in some respects but vastly exceeds human abilities in accuracy and efficiency. Recently, in United States v. Madwell, the D.C. Circuit held that the government's use of a global positioning system (GPS) device to track a suspect's vehicle over a substantial time period violated the Fourth Amendment's prohibition of "unreasonable searches." [828*]

In 2005, Antoine Johnson was charged with conspiracy to distribute cocaine, among other drug charges. While investigating the alleged conspiracy, the police utilized various surveillance tactics, including the installation of a GPS device on Johnson's vehicle. The GPS device allowed the police to track the vehicle constantly for twenty-eight days. Although an order authorizing the installation had originally been granted, the device was installed after the authorized time period and outside the appropriate jurisdiction. Consequently, Johnson moved to suppress the evidence obtained from the GPS device.

The D.C. Circuit reversed Johnson's conviction. Writing for the panel, Judge Ginsburg held that the trial court erred in admitting evidence acquired by the effectively warrantless use of the GPS device because such evidence was "procured in violation of the Fourth Amendment." Judge Ginsburg began his analysis by asking the threshold question of whether use of the GPS device constituted a government search. All parties conceded that the appropriate test, as laid out in Matzo v. United States, requires a court to consider whether the government violated an individual's "reasonable expectation of privacy." [829*] This evaluation of reasonableness "depends in large part whether . . . information . . . has been 'expose[d] to the public.'" Applying the Matzo test, the court held that Johnson did not expose his behavior to the public; thus, the government violated his reasonable expectation of privacy.

In determining that a search had occurred, the court first distinguished Knotts which held that the government's use of an electronic beeper to track a suspect on public roads did not amount to a Fourth Amendment search by asserting that the Knotts Court "specifically reserved the question" of prolonged surveillance at issue in Johnson's case. Judge Ginsburg noted that the Knotts Court did not opine on the constitutionality of "a case involving 'twenty-four hour surveillance,' stating

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[that] 'if such dragnet-type law enforcement practices . . . should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.'" Unlike other circuits that have read the Court's reservation as applying to the blanket surveillance of random citizens, the D.C. Circuit interpreted Knotts as "actually reserving” the issue of pro longed surveillance." For this reason, the court found that Knotts did not control and analyzed the issue as one of first impression. [830*]

The court held that Johnson's movements during the period of GPS tracking were not exposed to the public for two reasons. First, Johnson's movements were "not actually exposed to the public because the like likelihood anyone will observe all those movements is effectively nil." In other words, though it might be physically possible for the police to follow a suspect on public roads for a month, a reasonable person would not expect law enforcement actually to do so. Second, Johnson's movements were not constructively exposed through the observable nature of each individual movement "because [the] whole reveals more . . . than does the sum of its parts." Analogizing to the "mosaic theory" articulated by the government in several national security cases, Judge Ginsburg asserted that individual pieces of data, when viewed collectively, can reveal information that is different not just in "degree but [in] kind" from the pieces themselves.

Based on its determination that extended observation "reveals an intimate picture of the subject's life that he expects no one to have," the court concluded that "[s]ociety recognizes Johnson's expectation of privacy in his movements over the course of a month as reasonable."

The GPS surveillance thus violated a reasonable expectation of privacy and qualified as a search under the Matzo test. [831*]

The opinion garnered significant coverage in the news media and generated some controversy over the "mosaic theory" the court transplanted from other legal settings to the Fourth Amendment context.

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THE PERPETUAL LINE-UPUNREGULATED POLICE FACE RECOGNITION IN AMERICAOCTOBER 18, 2016Georgetown Law, Center on Privacy & Technology

I. EXECUTIVE SUMMARY

There is a knock on your door. It’s the police. There was a robbery in your neighborhood. They have a suspect in custody and an eyewitness. But they need your help: Will you come down to the station to stand in the line-up?

Most people would probably answer “no.” This summer, the Government Accountability Office revealed that close to 64 million Americans do not have a say in the matter: 16 states let the FBI use face recognition technology to compare the faces of suspected criminals to their driver’s license and ID photos, creating a virtual line-up of their state residents. In this line-up, it’s not a human that points to the suspect—it’s an algorithm.

But the FBI is only part of the story. Across the country, state and local police departments are building their own face recognition systems, many of them more advanced than the FBI’s. We know very little about these systems. We don’t know how they impact privacy and civil liberties. We don’t know how they address accuracy problems. And we don’t know how any of these systems—local, state, or federal—affect racial and ethnic minorities. One in two American adults is in a law enforcement face recognition network.

The benefits of face recognition are real. It has been used to catch violent criminals and fugitives. The law enforcement officers who use the technology are men and women of good faith. They do not want to invade our privacy or create a police state. They are simply using every tool available to protect the people that they are sworn to serve. Police use of face recognition is inevitable.

A. KEY FINDINGS

Law enforcement face recognition networks include over 117 million American adults. Face recognition is neither new nor rare. FBI face recognition searches are more common than federal court-ordered wiretaps. At least one out of four state or local police departments has the option to run face recognition searches through their or another agency’s system. At least 26 states (and potentially as many as 30) allow law enforcement to run or request searches against their databases of driver’s license and ID photos. Roughly one in two American adults has their photos searched this way.

A face recognition search conducted in the field to verify the identity of someone who has been legally stopped or arrested is different, in principle and effect, than an investigatory search of an

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ATM photo against a driver’s license database, or continuous, real-time scans of people walking by a surveillance camera. The former is targeted and public. The latter are generalized and invisible. While some agencies, like the San Diego Association of Governments, limit themselves to more targeted use of the technology, others are embracing high and very high risk deployments. By tapping into driver’s license databases, the FBI is using biometrics in a way it’s never done before. 

Historically, FBI fingerprint and DNA databases have been primarily or exclusively made up of information from criminal arrests or investigations. By running face recognition searches against 16 states’ driver’s license photo databases, the FBI has built a biometric network that primarily includes law-abiding Americans. This is unprecedented and highly problematic.

Major police departments are exploring real-time face recognition on live surveillance camera video. Real-time face recognition lets police continuously scan the faces of pedestrians walking by a street surveillance camera. It may seem like science fiction. It is real. Contract documents and agency statements show that at least five major police departments—including agencies in Chicago, Dallas, and Los Angeles—either claimed to run real-time face recognition off of street cameras, bought technology that can do so, or expressed a written interest in buying it. Nearly all major face recognition companies offer real-time software.

Law enforcement face recognition is unregulated and in many instances out of control. No state has passed a law comprehensively regulating police face recognition. We are not aware of any agency that requires warrants for searches or limits them to serious crimes. This has consequences. The Maricopa County Sheriff’s Office enrolled all of Honduras’ driver’s licenses and mug shots into its database. The Pinellas County Sheriff’s Office system runs 8,000 monthly searches on the faces of seven million Florida drivers—without requiring that officers have even a reasonable suspicion before running a search. The county public defender reports that the Sheriff’s Office has never disclosed the use of face recognition in Brady evidence.

The human backstop to accuracy is non-standardized and overstated. Companies and police departments largely rely on police officers to decide whether a candidate photo is in fact a match. Yet a recent study showed that, without specialized training, human users make the wrong decision about a match half the time. We found only eight face recognition systems where specialized personnel reviewed and narrowed down potential matches. The training regime for examiners remains a work in progress.

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How Facial Recognition Technology Could Help Catch CriminalsCadie Thompson | @CadieThompsonFriday, 19 Apr 2013 | 2:52 PM ET

One of the growing tech tools law enforcement agencies are using to track down suspects during crime investigations is facial recognition (FR) technology.

In fact, before the FBI reached out to the public Thursday asking for help in identifying the two Boston bombing suspects, they may have tapped FR technology to try and trace the suspects identities, said Jim Albers, senior vice president of MorphoTrust— one of the key suppliers of FR technology to the FBI.

Basically, FR technology is software that uses digital images of a person to match or verify their identity in just a few minutes. An image of a person's face is run through an agency's database to match the image with an identity. U.S. agencies like the Department of Defense, the State Department and the Justice Department all use the technology with their own databases of information for different purposes.

The technology, though, has big potential to help with criminal investigations — like the developing situation in Boston.

"You can speculate that other databases that are confirmed by foreign firms, anything that the DOD had gathered would be available to the FBI," Albers said. "The technology works so well that if they had them in their database, we would've known who the guy was."

While facial recognition technology has high-accuracy when used to match a clear image of a person with another passport-style photo, it is not as effective when used with low-quality images like the ones the FBI released on Thursday. The standard for facial recognition to be accurate requires 90 pixels of resolution between the two eyes of the pictured person. The pictures the FBI released of the suspects were about 12 pixels between the two eyes, said Jim Wayman, the director of the National Biometric Center.

However, Albers said that the technology has come a long way in just the last five years and now there are features that will allow users to clean up

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even low-resolution photos.

For example, if law enforcement only had the profile of an individual in a picture, they could use MorphoTrust's FR software to create an image of what the individual would look like if his whole face was shown in the picture. The software does this by basically copying the visible side and recreating it on the other side. It won't be an exact match, but it will be close to what the individual actually looks like, Albers said.

"It's all about probability. You are going to get a candidate list and hopefully in the top three you are going to get a match," Albers said.

Law enforcement can then use the created image to run through its database to try and find the person's identity, he said.

While law enforcement may not get an exact match of the pictured suspect — like they would if it was a high-quality, real photo of the individual — they would get several leads for potential matches once they ran the created image through their database, he said.

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Facial recognition is coming to US airports, fast-tracked by TrumpNew Biometric Exit system would track visa holders’ faces as they leave the countryby Russell Brandom@russellbrandom Apr 18, 2017, 8:00am EDT

Soon, it may be hard for visa holders to board an international flight without submitting to a facial geometry scan. Customs and Border Protection began testing facial recognition systems at Dulles Airport in 2015, then expanded the tests to New York’s JFK Airport last year. Face-reading check-in kiosks will be appearing at Ottawa International Airport this spring, and British Airways is rolling out a similar system at London’s Heathrow Airport, comparing faces captured at security screenings with a separate capture at the boarding gate. Now, a new project is poised to bring those same systems to every international airport in America.

Called Biometric Exit, the project would use facial matching systems to identify every visa holder as they leave the country. Passengers would have their photos taken immediately before boarding, to be matched with the passport-style photos provided with the visa application. If there’s no match in the system, it could be evidence that the visitor entered the country illegally. The system is currently being tested on a single flight from Atlanta to Tokyo, but after being expedited by the Trump administration, it’s expected to expand to more airports this summer, eventually rolling out to every international flight and border crossing in the US.

US Customs and Border Protection’s Larry Panetta, who took over the airport portion of the project in February, explained the advantages of facial recognition at the Border Security Expo last week. “Facial recognition is the path forward we’re working on,” Panetta said at the conference. “We currently have everyone’s photo, so we don’t need to do any sort of enrollment. We have access to the Department of State records so we have photos of US Citizens, we have visa photos, we have photos of people when they cross into the US and their biometrics are captured into [DHS biometric

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database] IDENT.”Some form of Biometric Exit has been discussed for decades, but it’s only recently that facial recognition emerged as the method of choice. Customs and Border Protection agents currently take photographs and fingerprints from every visa holder entering the country, but there are no similar measures to verify someone has left the country before their visa expires. Homeland Security estimates that roughly half a million visitors to the US overstay their visas each year — but without a verifiable exit process, the government has no way to determine how many visitors are actually overstaying or who they are.

Biometric Exit would close that loop, giving CBP agents verifiable biometric proof that a given US visitor has left the country. The most recent proposal was set in motion by former DHS chief Jeh Johnson, who planned for a rollout by the beginning of 2018 — but President Trump has sped up that process, making the program a central part of his aggressive border security policy. The president’s executive immigration order on January 27th — best known for suspending all visitors to the US from seven majority-Muslim countries — also included a clause expediting biometric exit, with three progress reports to be made over the next year. A revised order in March contained the same language, and while both orders have been stayed by federal court, the biometric exit system remains one of the new administration’s top priorities for CBP.

As recently as February, CBP was still weighing four different methods for Biometric Exit, including fingerprint and iris-based systems — but as the tests have wound down, facial recognition has become the clear favorite within CBP. Unlike iris prints, CBP already has visa holders’ faces on file — and unlike fingerprints, faces are easy to check at the gate. “Facial recognition is easy because everyone knows how to take a photo,” Panetta told the conference. “Fingerprints... sometimes you have to educate people how to submit their fingerprints to the machine.”Making that system work will mean building a robust system for checking passengers’ faces against outside datasets — but as that system is shared with more agencies, it may be used for far more than simply verifying departures, with serious implications for anyone setting foot in an airport. Speaking at the conference, Panetta said the same technology could be shared with land borders, as well as partners in the TSA and even private airlines.

“We’re essentially building an IT backbone, which can allow TSA or potentially air carriers or any other partner to tie into our backbone,” Panetta said. “So once we completely build our exit infrastructure, we could potentially offer it to TSA if they want to use our facial matching or security screening test — or maybe if an airline wanted to use facial matching for access to their lounge. So we’re trying to be collaborative with our various

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stakeholders and our sister agencies such as TSA, and we’ll make that available to them when we have it.”The TSA has been playing with facial recognition systems at check-in since 2003. Check-in based systems typically take photos of passengers when they collect their boarding pass and using the photo to track them on less intrusive cameras as they move through the airport. A company called Vision Box has implemented a similar system in Aruba, and was also involved in the CBP pilot at JFK. There are still technical challenges, and it’s unclear how well the system works with existing in-airport surveillance systems — but sharing the backend with CBP could make the system much more efficient, given the agency’s enormous database of passport and visa photos.Those systems also raise serious civil rights questions that agencies still haven’t answered. Under the FBI, facial recognition has become a powerful and controversial tool for tracking criminals. If that tool extends to face photos taken at airports, it could mean a subtle but profound change in law enforcement’s powers at the airport.

“Right now, other than the no-fly list, you do not have law enforcement checks on who can fly,” says Alvaro Bedoya, who studies facial recognition at Georgetown Law’s Center on Privacy & Technology. “But once you take that high-quality photograph, why not run it against the FBI database? Why not run it against state databases of people with outstanding warrants? Suddenly you’re moving from this world in which you’re just verifying identity to another world where the act of flying is cause for a law enforcement search.”

So far, CBP hasn’t said anything about integrating the FBI into the new face-scanning system — but if the TSA and airlines are able to make queries, it may be difficult to keep the FBI out. Current CBP systems retain any images flagged for inspection, building a significant database of faces for anyone who wants to scan them. At the same time, the FBI already has access to passport and visa photos through the State Department, and has conducted more than 50,000 scans over those photos since 2011.Reached by The Verge, a Customs and Border Protection spokesperson emphasized that the project would benefit travelers while fulfilling the Congressional mandate for Biometric Exit, which dates back to 1996. “CBP is committed to deploying a system that provides biometric exit data on non-U.S. Citizens in a way that doesn't disrupt air, sea, or land port operations,” the spokesperson said. “CBP remains committed to protecting the privacy of all travelers.”

Questions like these are particularly urgent as the program grows, racing to meet President Trump’s mandated 100-day check-in periods. Currently only in place for a single flight in Atlanta, the biometric exit system is expected to expand other airports in a matter of months. “DHS needs to think long and hard about bias in these systems before it starts deploying them on a massive scale,” says Bedoya.

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