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Legal for Cops to Use iPhone Facial Recognition?

By Cynthia Hsu, Esq. on July 14, 2011 | Last updated on March 21, 2019

Police can soon use their iPhones for facial recognition software, which has led many to wonder about whether or not facial recognition is legal without a warrant.

The new device attaches onto the humble smartphone, or in this instance, is easily attachable to an iPhone. Police officers can take a picture of the suspect, or scan the suspect's eyes. The image is then compared to a criminal database.

But, is this newfangled technology actually an invasion of privacy, and does it require some sort of search warrant?

Invasion of privacy claims and search and seizure claims generally hinge on whether or not the person has a reasonable expectation of privacy on whatever is being searched or viewed.

A person who goes around taking pictures of someone on a public street generally is not invading people's privacies. When someone is out taking a walk or dining al fresco at a public place, they have a diminished expectation of privacy.

The same goes for searches and seizures. Say, for example, a criminal puts a bag of marijuana on a public picnic table in broad daylight. A police officer sees this, and seizes the drugs. Did the criminal really have an expectation of privacy when he put the drugs out in plain view?

Similarly, do individuals or suspects have an expectation of privacy about an image of their face if they are pulled over or stopped in public? After all, we hold our faces out in public view on an almost-daily basis.

Collection of fingerprints has been more widely accepted as legal. However, collection of DNA from suspects has raised privacy concerns. But, maybe we simply have a higher expectation of privacy over our genetic code. And, the law is not as clear as to where the collection of facial images and irises fall.

For now, the iPhone facial recognition software is probably going to continue to spread. The manufacturer of the device says they have agreements with 40 law enforcement agencies, reports The Daily Mail. And, as the practice spreads, there seems little doubt that the debate over whether or not facial recognition is legal will begin.

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