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You are reading: Katz is out of the Bag: Katz’s Weaknesses & the Rapidly Emerging Technology of Today and the Future, (2005)
Katz is out of the Bag:
Katz’s Weaknesses & the Rapidly Emerging Technology of Today and the Future.
Robert Keates Spring, 2005
b. Neo-Katz Analysis
This outcome is altered by applying a neo-Katz ‘method used by technology’ approach. The method the facial recognition software uses is to scan the face and process the image though computer database programs in order to obtain the individual’s identity. To the contrary, the information that is revealed by facial recognition is merely the person’s face, which has no privacy implications as discussed above. This is a noteworthy distinction. Identity, as opposed to a face, has many privacy implications. A user of facial recognition may have greater access to private information than a normal person who glances at the individual’s face on the street. Databases linked to a suspect’s face could include addresses, family, banking records, or a list of locations visited in the last week. These aspects are not present in every facial recognition system, and this argument really centers in on the types of databases that can be linked to facial recognition software. Still, the distinction is there, and with the rapid advance of technology, databases such as these may not be far off.
The question becomes whether the use of facial recognition software, with a database that includes more than the person’s basic pedigree information, violates Katz’s objective prong when based on social norms? People are becoming increasingly private, thanks to computers and other related technology. Generally, individuals enjoy anonymity while in public, unless they are celebrities. Many would find it intrusive to have their actions observed and possibly recorded as they walk down their neighborhood street. They may find it offensive that law enforcement could be searching through expanded databases on their families, employment, network of contacts and friends, or favorite restaurants. Why would the police do this? Perhaps to figure out why an individual is present in a certain area. Databases such as those above could aid police in figuring out who is in a high crime area to buy drugs. Those databases could also aid in establishing probable cause. Imagine the following in a police report:
Suspect was observed walking in known downtown drug area. Facial recognition database search revealed he lived across town, worked five miles from drug area, and had no family members or friends located within three miles. Additionally, suspect’s favorite restaurant is P.F. Chang’s, which he has eaten at three days last week, located 4 four miles away.
Most citizens would find this type of database extremely intrusive. Prying into one’s life is not only against social norms but is considered socially deviant, and in some circumstances, illegal. Indeed, people who utilize that type of information for personal gains in society are labeled identity thieves. But one can easily recognize the usefulness as a crime-fighting tool by police, whether legitimate or not. By focusing instead on how the technology works, important issues arise that could lead to privacy implications. However, with the court’s present focus on ‘what the search reveals’, this analysis would have ended at ‘what is exposed to the public…’.
2. Concealed Weapons Detectors
a. Traditional Katz Analysis
Gun detectors are a bit trickier than facial recognition, in that gun detectors are able to detect beyond what a person openly displays to the public. Obviously, gun detectors have been developed to detect weapons an individual’s intends to hide from public eyes.
An individual’s subjective expectation of privacy in carrying a gun would depend on the facts of each case. For the sake of this paper, it will be assumed that the carrier would be hiding the gun under the outer clothing, instead of wielding the weapon in his hand while walking down a public street. An individual concealing a gun underneath clothing may take additional precautions to avoid detection. Baggy clothing, jackets, and shoulder or ankle holsters all may be taken into account by a court accessing the expectation of privacy. The fact that a gun-totter may be aware of the possibility that some police officers could be scrutinizing the street with x-ray machines does not seem enough to overcome any subjective expectation of privacy. As long as the individual takes steps to avoid buildings or areas where metal detectors or security searches are present, it would seem there was a subjective expectation of privacy.
Under a traditional Katz objective test, the capabilities of the detector model used would control whether society would deem the gun detector reasonable. Currently, there are two models of gun detectors: those that reveal only the presence of guns and those capable of revealing much more. Those that reveal only the presence of a firearm would not constitute a search under Katz’s second prong. Turning first to the ‘type of information revealed’, gun detectors are akin to dog sniffs in that they only disclose the presence of illegal guns. As the court held in Place, there is no reasonable expectation of privacy in possessing contraband.227a Under this reasoning, gun detectors would be reasonable on the same grounds as Caballes. There is still an issue with legal gun owners. In jurisdictions that have passed laws permitting the carrying of concealed weapons, owners who have this license could be subjected to scrutiny each time an officer’s gun detector gave a positive reading.
However, gun detectors, especially the latest line, are capable of detecting not only guns, but knives, plastic explosives, and even drugs. While these items are all contraband, newer gun detectors are also capable of revealing other items in the pockets and bags of citizens. It has been suggested that gun detectors are possible of outlining body parts and organs.227b In Kyllo, thermal imaging failed the Katz analysis due to the possible exposure of the intimate details (albeit in the home). Likewise, in Caballes, the court warned that detection methods capable of detecting more than contraband, especially when hidden from public view, would implicate legitimate privacy interests and not pass the Katz objective prong. Society would be extremely uneasy with the notion that police possessed such an intrusive tool on the streets. This is evident by the public outcry occurring after a recent Japanese cell phone hit the market featuring an x-ray camera. The camera, as well as the invasive gun detector model, violates social norms.
The courts have not had a chance to examine gun detector technology, but they have heard cases involving magno-meters, or metal detectors. Several circuits have held that the use of a magno-meter was a search, because it searched and disclosed metal items within intimate areas where there was an expectation of privacy. Courts have upheld the use of magno-meters in certain restricted areas, not under Fourth Amendment jurisprudence, but under special needs doctrine.
A gun detector capable of detecting only firearms would pass under a traditional Katz test. Conversely, a detector capable of detecting all items, including physical attributes, would undoubtedly fail both prongs of Katz, and therefore constitute a search. Law enforcement would be required to obtain a warrant in order to use the latter gun detection technology.
One could easily imagine legitimate home uses for facial recognition software, including placing cameras both on at the front door and roof of a home. When linked to databases designed to automatically detect the presence of criminals and sexual predators in the area, many parents would find this technology appealing.
227a Place, 462 U.S. at 707.
227b Arbus, supra note 175, at 1754.
United States v. Albarado, 495 F.2d. 799, 803 (2d Cir. 1974); see also United States v. Bell, 464 F.2d 667, 673 (2d Cir.) (holding that use of magnetometer was a reasonable search under the circumstances), cert. denied, 409 U.S. 991 (1972); United States v. Slocum, 464 F.2d. 1180, 1182 (3d Cir. 1972) (magnetometer search reasonable in light of governmental interest in protecting national air commerce); Epperson, 454 F.2d at 770 (holding that use of magnetometer constitutes a search for Fourth Amendment purposes).