Anonymity, Faceprints, and the Constitution

Part I defines anonymity and explains that respect for the capacity to remain physically and psychologically unknown to the government traces back to the Founding. With the advent and expansion of new technologies such as facial recognition technology (“FRT”), the ability to remain anonymous has eroded, leading to a litany of possible harms.Part II reviews the existing Fourth and First Amendment doctrine that is available to stave off ubiquitous government surveillance and identifies anonymity as a constitutional value that warrants more explicit doctrinal protection. Although the Fourth Amendment has been construed to excise surveillance of public and third-party information from its scope, the Court’s recent jurisprudence indicates a growing recognition that constitutional doctrine is out of step with modern surveillance technologies. The Supreme Court has expressly recognized a First Amendment right to anonymous speech, which should be taken into account in assessing the constitutionality of government surveillance systems under the Fourth Amendment. This Part accordingly draws a distinction between cases that arose in the pre-digital age, in which content was often collected through physical trespass or eavesdropping, and those arising in the digital age, in which correlations among disparate points of “big data” are used to make predictions.Part III argues that Fourth and First Amendment doctrine should be reconciled to address the manipulation — versus acquisition — of FRT data to derive new information about individuals which is exceedingly intimate and otherwise out of the government’s reach. This Part suggests that this qualitative shift in information gathering is constitutionally significant under existing doctrine. Part III also offers guidelines gleaned from the intersection of First and Fourth Amendment jurisprudence for consideration by lower courts and legislators as they address the threat of limitless surveillance which big data and new technologies present.