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TechFreedom filed the following comments (PDF) in the FTC's inquiry about the privacy implications of facial recognition technology.

The Federal Trade Commission plays a vital role in punishing unfair and deceptive trade practices. Fulfilling its statutory duty to protect consumers requires, of course, carefully monitoring the development of new technologies that, like facial recognition, directly affect consumers. Thus, inquiries such as this one—and related workshops—deserve praise, encouragement and the greatest possible degree of input from all stakeholders.

And yet, with the best of intentions, the Commission is treading on dangerous constitutional ground. Proposals to restrict the use of facial recognition technology—even through opt-out mandates—implicate difficult First Amendment questions:  When may government restrict our right to observe the world around us, such the faces we see on the street, and to reduce those observations to mathematical terms?  May an individual bar others from using the unique mathematical description of his or her face?  In other words, do we have a property right in our visage?  If so, what other personal information—or raw facts—may be property-tized?

The Center for Democracy & Technology touches—thoughtfully but incompletely, on some of these questions, citing the Supreme Court's 1973 decision in U.S. v. Dionisio: “No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.”[1]  CDT may indeed, be correct that even information available to the naked senses should be protected against systematized—and potentially persistent and ubiquitous—observation through increasingly sophisticated technological measures. But this is a Fourth Amendment question—about when observation of information constitutes a "search" for which probable cause (or some lower standard of proof) may be required.  

We agree with the argument made by the Cato Institute in their amicus brief in the recently decided Jones case: The Supreme Court has fundamentally misinterpreted its 1967 Katz decision; rather than hinging on "reasonable expectations" (a term used in Justice Harlan's solo concurrence) it actually hinges on accessibility, much as CDT argues here. Justice Stewart's majority opinion, joined by six justices, used a different standard:

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Getting this standard right could go a long way to ensuring that the Courts protect Americans from the abuse of facial recognition tracking. While it is understandable that the FTC has ruled this problem out of bounds for this inquiry, given its limited authority, doing so has resulted in the perverse result that the most dangerous use of a technology is discussed as a problem to be addressed only indirectly, by limiting the use of facial recognition by private actors.

Herein lies the danger of this inquiry: Creating property rights in our likeness risks becoming a right to keep people from looking at—and talking about—us, with all the perils for the protection of free expression more generally. This is precisely the problem First Amendment scholar and UCLA Law Professor Eugene Volokh warned about in his seminal 2000 law review article, "Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People from Speaking About You,”[2] which I submit herewith as an essential part of the record in this inquiry.  As Volokh opens his piece:

Privacy is a popular word, and government attempts to “protect our privacy” are easy to endorse. Government attempts to let us “control . . . information about ourselves” sound equally good: Who wouldn’t want extra control, especially of things that are by hypothesis personal? And what fair-minded person could oppose requirements of “fair information practices”?

The difficulty is that the right to information privacy—the right to control other people’s communication of personally identifiable information about you—is a right to have the government stop people from speaking about you. We already have a code of “fair information practices,” and it is the First Amendment, which generally bars the government from “control[ling the communication] of information” (either by direct regulation or through the authorization of private lawsuits), whether the communication is “fair” or not. While privacy protection secured by contract turns out to be constitutionally sound, broader information privacy rules are not easily defensible under existing free speech law.

Among Volokh's central concerns is the suppression of facts.  As the Supreme Court recently put it in its Sorrell decision: “Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.”[3]  Volokh explains how imposition of at least some of the Fair Information Practice Principles in general can result in the suppression of truthful speech—and what this would mean for the rest of First Amendment doctrine.  In particular, he notes that the purported "right of publicity" (on which many arguments for restrict facial rest) has never been recognized by the Supreme Court—and argues that, if it were ever recognized, it would be narrowly limited.[4]

This is not an argument that the government should do nothing.  The First Amendment neither protects fraud (such as violation of the kind of self-regulatory program for facial recognition advanced by CDT) nor precludes the government from mandating truthful disclosures about corporate privacy practices (such as when, where, and how they use facial recognition).  Restrictions on demonstrably harmful uses of data are, in general, likely to raise fewer First Amendment problems than restrictions on observation, analysis and distribution (provided they are content and viewpoint neutral).

For now, this is simply an argument that the FTC should tread carefully—and focus on using its existing authority effectively to protect consumers.  More than anything else, that means giving Prof. Volokh's excellent essay the attention it deserves—and remembering that if the Fourth Amendment does not adequately protect us from government snooping into our private affairs, the inevitable result will be intrusions on free speech protected by the First Amendment.

Last week's unanimous decision of the Supreme Court in U.S. v. Jones (PDF) marks a major victory for constitutional rights.

While the justices split in their rationale, they agreed that protecting Americans' privacy in the digital age will require the Court to do a great deal more to untangle its confusing Fourth Amendment jurisprudence. That will likely take several more decisions -- and many years. Meanwhile, Congress should heed Justice Samuel Alito's call for legislation limiting government's ability to track us and snoop through our private communications.

First, the good news: Law enforcement can no longer plant GPS tracking devices on our vehicles without satisfying the Fourth Amendment. Even better: the majority of justices -- including conservative Justices Antonin Scalia, John Roberts, Anthony Kennedy, and Clarence Thomas, joined by Obama appointee Sonia Sotomayor -- agreed that Jones is only the beginning of the long-overdue inquiry into constitutional protections against location-based surveillance.

In a way, Jones was an easy case: By recognizing that law enforcement's physical trespass on private property to plant a surveillance device constituted a search, the Court ensured that the Fourth Amendment provides at least as much privacy protection today as when it was adopted. (Whether the Constitution required a probable cause warrant or would have been satisfied by some lesser standard, such as reasonable suspicion, the Jones majority did not decide.) Just as the Fourth Amendment would have been triggered if an 18th century constable hid himself in a suspect's stagecoach to track him or record his conversations, so too must modern police satisfy the Fourth Amendment before using satellites to track devices hidden on cars. (Whether the Constitution required a probable cause warrant or would have been satisfied by some lesser standard, such as reasonable suspicion, the Jones majority did not decide.) But what about purely electronic surveillance?

Today, the Supreme Court issued its decision in U.S. v. Jones, unanimously holding that law enforcement violated the Fourth Amendment by affixing a GPS tracker to a vehicle to monitor its movements without obtaining a search warrant from a court. The following statement can be attributed to Berin Szoka, President of TechFreedom:

This was an easy case: law enforcement plainly trespassed on private property protected by the Fourth Amendment. But as the majority notes, today's holding is only the bare minimum of the Constitution's protections. The harder question awaits the Court: When does purely electronic surveillance—without physical trespass—violate the Fourth Amendment?

At the very least, the Court must reconsider the "third party" doctrine invented by lower courts, which denies us protection for information we share with trusted third parties like "cloud" services that host our email, photos, and documents. The Court should make clear that Fourth Amendment protections hinge not on keeping information secret, but on whether we take steps to preserve that information as private. That, not the "reasonable expectation of privacy," is the standard the Court applied in its landmark 1967 Katz decision. It is also the only standard that will effectively protect Americans' privacy in the digital age.

Szoka is available for comment at media@techfreedom.org.