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COSA indifferent to warrantless use of facial recognition, treating it as modern-day equivalent of telephone tip.

Facial profiling technology is a new weapon in the investigative arsenal with big-data implications for the collection, use, and retention of facial images (and gait—for longer range identification) in biometric fusion databanks. A recent Maryland intermediate appellate decision, Geiger v. State, Court of Special Appeals (December 5, 2017) (Moylan, J.), shows that courts have little angst about the warrantless use by police of this highly sophisticated surveillance practice, treating it as the modern-day equivalent of an anonymous telephone tip or the fingering of a suspect by an undercover “mole.” Ironically, in his opinion, Judge Moylan cites the apparent reliability of this technology to search across vast databases as a reason to be indifferent. The opposite is true. A hands-off approach is out-of-synch with the power of facial-recognition technology and big-data biometric fusion databanks, which have exploded the practical limitations of the no-tech or low-tech tools police historically have relied on to identify suspects. Facial recognition technology is proliferating precisely because it is vastly more powerful and convenient to use than the investigative techniques it is rapidly replacing. Because we value the right to be left alone, courts should not pass on the question whether, and to what degree, the use of this new surveillance technology should be subjected to judicial supervision. Given the wide technology gap and lack of practical safeguards, a legal doctrine which justifies judicial indifference of the low-tech investigative tools cited in the Geiger decision, (such as “hotline” tips or “the prescience of a Gypsy fortune-teller or the wisdom of the tea leaves”) should not also dictate the rule whether courts should supervise the investigative use of a highly sophisticated technology like facial recognition. At the least, the question of judicial supervision should remain open before the privacy implications of this emerging technology are fully understood and considered.

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