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14: Case Study: Super Bowl Surveillance
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Under our federal system, states are free to provide greater privacy protections in their laws than those afforded in the United States Constitution When evaluating the use of a specific biometric system, therefore, its legality must be analyzed under state constitutional provisions as well as state statutory law Some state constitutions contain privacy provisions, like California s and Florida s, for example At the other extreme, Virginia s constitution is silent on the subject and the Virginia Supreme Court has explained that Virginia has only recognized a right to privacy in limited form by statute To be clear, this chapter only discusses privacy rights emanating from the US Constitution
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As the technology advances, particularly to the point that many facial recognition or other biometric databases become interlinked and shared, the threat to information privacy has the potential to increase significantly With biometric facial recognition, the loss of informational privacy essentially takes two forms: fears of tracking and fears of clandestine capture Tracking refers to the ability to monitor an individual s actions in real time or over a period of time In its most extreme incarnation, tracking could become a kind of supersurveillance that lets the tracker follow a person today, as well as search databases to reconstruct his movements from months ago For example, suppose the authorities place me in their watch list database As I go about my many daily tasks, surveillance cameras could capture my face and digitally transmit this biometric information for instantaneous searching against the watch list As I leave my residence, walk to the station, board the subway on my way to work, enter and exit my office building, stop by the ATM, make purchases in stores, visit my doctor, or attend a political rally or religious service, my face will be matched with information in the database, allowing the State to track my movements Similarly, the authorities can enter on their watch list the biometric information of all those who attended the political rally with me The authorities could then reverse engineer the identity of these individuals, by searching the database for their previous movements If such a system were established, it would become possible to compile a comprehensive profile of an individual s movements and activities The theoretical possibility that the government could compile such massive databases, and that such databases could be used by law enforcement, raises the specter of Big Brother tracking its citizens every move The clandestine capture of biometric data increases these fears As the preceding example makes clear, facial recognition systems can surreptitiously track individuals without their knowledge or consent Moreover, the information from tracking can be combined with other personal data, acquired by other means (through, for example, a social security number), to provide even more information about an individual s private life
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Whether such technological advances as the capability for supersurveillance could render certain applications of this technology unconstitutional remains to be seen If the compilation of information in these databases had a significant chilling effect on First Amendment rights, such as attending a political rally, if it impinged on fundamental rights of decisional privacy, or if the information were insufficiently safeguarded against unauthorized disclosure, then the maintenance of such databases could potentially run afoul of the law Given these potential concerns, civil libertarians are correct that we should be mindful of emerging technologies that may invade our privacy, and it is wise to monitor their development to forestall potential abuses We should, however, also ensure that perceived or potential threats to our privacy do not blind us to the positive uses of biometric technologies like facial recognition
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At the Super Bowl and other venues, law enforcement used facial recognition as part of its efforts to prevent a terrorist act or other serious criminal incident Although no suspected terrorists were apprehended, the authorities took prudent steps to identify them if they had chosen to show their faces The national security community also understands the need for such precautions, and it believes that in addition to helping prevent potential terrorist acts against the public, biometric facial recognition can help it identify and protect against terrorist threats to US forces and our embassies abroad As we all know, terrorist attacks have extracted a painful toll In Saudi Arabia in 1996, terrorists exploded a truck bomb near Building 131 of Khobar Towers Nineteen US service members died Hundreds were injured In 1998, truck bomb attacks destroyed the US embassies in Kenya and Tanzania, taking 224 lives and wounding some 4,600 others And on October 12, 2000, a terrorist attack on the USS Cole in the Yemeni port of Aden killed 17 sailors and injured 42 more In an effort to protect its forces from such attacks, the US military has looked to technologies such as facial recognition In the wake of the Khobar Towers terrorist attack, the Defense Advanced Research Projects Agency (DARPA) embarked on a $50 million initiative known as Human ID at a Distance, a major component of which is facial recognition DARPA s ambitious goal is to help develop biometric technologies, facial recognition prominently among them, that can be deployed to identify a known terrorist before he closes in on his target: identify and intercept the intruder before he can cause harm In this way, lives can perhaps be saved The terrorist attacks of September 11, 2001 refocused America s attention on technologies that can help improve public safety and homeland security Congress has provided appropriations for the technology s use in this regard For example, Government Technology reported in August 2002, The effort to deploy facial rec-
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