From Street Photography to Face Recognition: Distinguishing Between The Right To Be Seen And The Right To Be Recognized
Claudia
Cuador
A recent article emphasizes the danger of a
new Russian mobile application that allows a stranger to snap a photo of
another and, within seconds, learn of that person's intimate information.[i] Even more alarming than the danger is the
creator’s inability to control the use of the application. Jurisprudence
revolving around the topic of invasion of privacy in public spaces generally
recognizes that, under most circumstances, one who reveals himself in public
does not hold a reasonable expectation of privacy.[ii] This
reasoning applied to general surveillance systems such as video cameras and
artistic mediums such as street photography.
Street photography, the capturing of another’s
image in public spaces, has been addressed by courts as a permitted intrusion.[iii] Part of the reasoning behind the legality of
street photography is that the photographer is merely sharing information—an
image that was already in plain sight.[iv] Such
interpretation lacks the presence of more recent technology and needs revision.
Face recognition not only shares an already visible image, but also uses that
image to share what is not at plain sight—personal information. The technology goes beyond that of making an image
public—it can place criminal liability on an innocent person. Today, this invasive technology is available
to every one, not just law enforcement agencies, and thus requires regulation.
Face recognition applications offer strangers an advanced platform to begin
persecution. The core reasoning is the fundamental distinction between the
right to be seen and the right to be recognized. While one cannot reasonably
expect to not be seen in public, it is likely that a majority of people do in
fact have a reasonable expectation of not being recognized. As such, American
law must amend its current laws to reflect the growing danger of extreme
invasion and severe crime.
If laws regarding invasion of privacy in
public spaces are not revised, crimes such as kidnapping, sexual harassment,
revenge porn, and others will likely increase. Modern applications using face
recognition algorithms, combined with complete access to public databases of
personal information, like Russia’s FindFace, serve as dangerous temptation.
Although most social networks, with the exception of Twitter, remain private,
it will not be long until a similar platform is created in the United States.
Since it cannot be controlled, American law must evolve and embrace new trends
in technology in order to protect citizens and offer some degree of expectation
of privacy in public spaces. Face recognition goes beyond being seen and an
image being captured—it allows a stranger to locate you without your consent.
Although the topic of face recognition in the
context of privacy has been addressed, I found that the fundamental distinction
between street photography and face recognition has not been explored. The two
are inevitably connected, as face recognition is the natural evolution of
street photography. As technology advances, however, our current world
becomes less “common,” and the common law of invasion of privacy becomes less
useful in protecting our images. Although I would not go as far as
proposing face scans as a battery, or a complete ban on facial recognition
technology, civil law must provide a means to place liability on those who,
without consent, take a scan of one’s image or body. It is crucial that facial
recognition technology is recognized as able to capture information that is
just as intimate as an image of our physical bodies, and thus considered a
search under the Fourth Amendment.
[i] Ben Guarino, Russia’s New FindFace App
Identifies Strangers in a Crowd with 70 Percent Accuracy, Wash. Post (May 18, 2016),
https://www.washingtonpost.com/news/morning-mix/wp/2016/05/18/russ…dface-app-identifies-strangers-in-a-crowd-with-70-percent-accuracy/.
[ii] Andrew J. McClurg, Bringing Privacy Law
Out of the Closet: A Tort Theory of Liability for Intrusions in
Public Places, 73 N.C. L. Rev. 989,
1003–04 (1995)
[iv] Katz v. United States, 88 S.Ct. 507, 511 (1967).
