Current Issue

Volume 24, Issue 1 (2021)

Articles

Bertillonage in an Age of Surveillance: Fourth Amendment Regulation of Facial Recognition Technologies

By David C. Gray

The Fourth Amendment is a closed hydraulic system. As a general rule, if government conduct is deemed a “search” under the Fourth Amendment, then agents must secure a warrant from a detached and neutral magistrate before engaging in that conduct. There are exceptions, of course, but they just shift the pressure into another valve. Officers who conduct searches based on their own initiative must show not only probable cause, but also good reasons why, in their circumstances, they were not required to get a warrant.

One consequence of these Fourth Amendment hydraulics is a reluctance on the part of the Supreme Court to label government conduct a “search.” As a result, a whole host of government activities that constitute “searches” by any commonsense standard—such as looking for someone in a public place—are immune from Fourth Amendment regulation. Out of fear that officers on the beat cannot be expected to get a warrant before monitoring a suspect’s public movements or demonstrate probable cause in support of these investigative efforts, the Court has left the use of these means and methods to the unfettered discretion of executive agents.

Until recently, this state of affairs may well not have threatened “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches.” Circumstances have changed with the emergence of new surveillance technologies capable of facilitating programs of broad, indiscriminate surveillance. The Court seemed to recognize this change with its 2018 decision in Carpenter v. United States, which held that government agents need a warrant to access cell site location information. But no matter how salutary, that decision was far from revolutionary. The hydraulics remained intact. By virtue of the nature of cell site location information and its primary investigative role, imposing a warrant requirement did not impose significant burdens on law enforcement or put the technology beyond its realistic, and reasonable grasp.But what about other technologies that are not so well-suited to existing Fourth Amendment hydraulics? Will the Court accept the Hobson’s choice it has created? Or will it chart a new path. This article uses the example of facial recognition technology to argue for a new path. Part I describes facial recognition technology and explains its place in a long tradition of biometric identification. Part II explains the challenges facial recognition technologies pose for the Court’s current Fourth Amendment jurisprudence. Because facial recognition technologies mostly monitor activities conducted in public places and entail neither a physical intrusion nor a violation of reasonable expectations of privacy, their deployment and use does not appear to constitute a “search,” and therefore seems beyond the reach of Fourth Amendment regulation. Relying on both text and history, Part II argues that looking for or trying to find someone using facial recognition technologies constitutes a “search.” This does not mean that government agents must get a warrant before deploying or using facial recognition technologies, which would result in a virtual ban. Rather, as Part III, shows, a more bespoke approach to regulating the deployment and use of these technologies is required. Part III then details a regulatory regime that would allow for the reasonable use of facial recognition technologies while guarding against threats of broad, indiscriminate, and intrusive surveillance.

 

COVID-19: Legal Framework for Vaccine Distributions and Mandates

By Dana B. Taschner and Ashley Atwood

The COVID-19 pandemic has created heightened turmoil for at-risk populations, solidified laws allowing the use of mask mandates, raised legal issues surrounding vaccine mandates, and presented the new issue of a vaccine passport. As a nation, we have failed to implement vaccination schemes that properly protect vulnerable populations. Specifically, the homeless population has been overlooked, creating an additional layer of hardship, and contributing to greater community spread. This article contemplates the various methods by which an equitable vaccination scheme could have been achieved and the division of powers that created complications.

Additionally, the legality of vaccine mandates is discussed, and shows how our case law lays a foundation that would make a vaccine mandate legal. There are a multitude of vaccines already required for entry into school and other events. While the relatively low fatality rate of COVID-19 has been the source of backlash, this article shows how sufficient risk to an individual is not synonymous to sufficient risk to the community. Finally, the novel implications of vaccine passports are presented, and possible treatments of this issue in court are contemplated.

 

Case Notes

Q: Can Booking.Com Be Trademarked? A: Booking.Yeah

By Samantha Favela

 

The Art of Dodging Bullets: How Covid-19 Drug Manufacturers and Providers Plan to Escape Tort Liability

By Ruan Meintjes

 

The Fifth Circuit, Fourth Amendment, and the Third-Party Doctrine: Two Takeaways from the Court’s First Ruling on Bitcoin Privacy

By Daniel Penn

 

Trump’s Twitter Tension: Is Social Media a Modern Restriction on Government Employees?

By Caylee Phillips

 

Signed, Sealed, Patented?: A Look at the United States Postal Service’s Patent Application for Implementing Blockchain Technology in Mobile Voting Systems

By Ethan Todd

Past Issues

Volume 23, Issue 2 (2020)

Volume 23, Issue 1 (2020)

Volume 22, Issue 2 (2019)

Volume 22, Issue 1 (2019)

Volume 21, Issue 2 (2018)

Volume 21, Issue 1 (2018)

Volume 20, Issue 2 (2017)

Volume 20, Issue 1 (2017)

Volume 19, Issue 4 (2016)

Volume 19, Issue 3 (2016)

Volume 19, Issue 2 (2016)

Volume 19, Issue 1 (2016)

Volume 18, Issue 4 (2015)

Volume 18, Issue 3 (2015)

Volume 18, Issue 2 (2015)

Volume 18, Issue 1 (2015)