The Federal Bureau of Investigation (FBI) has announced that it will use Facial Recognition Technology in its Next Generation Identification (NGI) system. The system, which will eventually serve as an upgrade to the current Integrated Automated Fingerprint Identification System (IAFIS), will use security footage from public cameras to identify suspects and people of interest across the country. IAFIS contains only fingerprint information, while the NGI system can store information about a person’s voice, iris, and facial biometrics. The program is currently being tested in certain areas, using photographs drawn from law enforcement databases. When the system is rolled out in full scope in 2014, the FBI will provide facial recognition software to law enforcement agencies nationwide.

For this technology to work effectively as an identifying mechanism, a large database of faceprints must exist, against which images captured by the camera could then be compared.  These faceprints will need to have already been matched with a name. A criminal database is an obvious initial source for this, but it has limited reach. To grow its faceprint database, the NGI program could draw from non-criminal government photograph databases such as those maintained by a state’s Department of Motor Vehicles, U.S. Citizenship and Immigration Services, or even privately held databases that are maintained by social networking websites. Often, photographs in these databases will be connected to a person’s real-name identity, and the originators may not hold exclusive rights to the photographs, making the database accessible to law enforcement. While no law directly protects people’s interests in their faceprints, the acquisition of faceprints without a warrant may implicate the subjects’ Fourth Amendment right to be “secure in their persons…against unreasonable searches and seizures.”

Fourth Amendment Implications

No court has yet explicitly recognized Fourth Amendment protection of faceprints. The Supreme Court has recognized, however, that other biometric data is constitutionally protected. In Davis v. Mississippi (394 U.S. 721 (1969)), defendant Davis was held without a warrant or probable cause during the course a rape investigation. During this time, defendant’s fingerprints were taken by authorities, and were matched to a set of fingerprints found at the scene of the crime. The evidence of the match was used at trial, and defendant was convicted of rape. Davis appealed, alleging that the acquisition of the fingerprints was the result of an unreasonable search and seizure. The Supreme Court agreed, stating that fingerprints could not be collected without a warrant. Like possessions taken from a person, the fingerprints bear “evidentiary value which the public authorities have caused an arrested person to yield.”

Some guidance is provided by Skinner v. Railway Labor Executives Ass’n (489 U.S. 602 (1989)), in which labor organizations challenged the drug testing procedures used by their employers. The challenged procedures included collection of blood and urine. The court found such procedures, without warrant or probable cause, to violate the Fourth Amendment, citing “concerns about bodily integrity.” While such concerns differ from those that arise in the use of facial recognition technology, Skinner is indicative of the notion that the Fourth Amendment includes some protection against using evidence that was drawn from the a person’s own body to convict him or her.

Most recent is United States v. Jones (132 S.Ct. 945 (2012)), in which authorities planted a tracking device on defendant’s car. The court found that tracking the defendant’s public movements through a Global Positioning System unit violated the Fourth Amendment. Similarly, matching a faceprint to an image captured by a public camera in order to track a person’s location at a given time may violate these protections.

Together, these cases imply that the warrantless collection and use of faceprints by law enforcement is unlikely to overcome the hurdle of the Fourth Amendment. As the use of facial recognition technology becomes more prevalent and faceprints gain prominence as a form of biometric identification, that theory is likely to be put to the test.

The USPTO, Google, and Stack Exchange have teamed up to crowdsource patent analysis and expand the scope of access in areas like software patents. For the first time in the history of American patent law, the USPTO is inviting third parties to submit relevant materials to patent examiners. Stack Exchange has set up a website which users can access pending patents, submit prior art, discuss patent validity. Google has pledged to have its own patent search engine’s search results display links to the Stack Exchange discussion. This will only be applicable to patent examinations that have been made public, and to prevent abuse of the site, a single person is limited to one submission per patent, with up to three pieces of prior art. Additional submissions will come at a fee of $120.

New Zealand’s MegaUpload Apology

New Zealand Prime Minister John Key formally apologized to MegaUpload founder Kim Dotcom for surveillance carried out illegally on him by the Government Communications Security Bureau (GSCB). The organization is prohibited from spying on New Zealand citizens and permanent residents, and while Dotcom was not a citizen, he was classed as the holder of a residence class Visa, making him a permanent citizen for surveillance purposes. Dotcom accepted the apology via twitter, tweeting: @JohnKeyPM, I accept your apology. Show your sincerity by supporting a full, transparent & independent inquiry into the entire Mega case.

AT&T’s FaceTime Problems Persist

Free Press, Public Knowledge, and the New America Foundation’s Open Technology Institute stated their intent to file a complaint with the FCC against AT&T for allegedly violating net neutrality by blocking access to FaceTime—an iPhone and iPad application—unless a customer has subscribed to an AT&T data plan. The policy director of Free Press stated that AT&T’s actions constitute “a clear violation of the FCC’s Open Internet rules.” FCC Chairman Julius Genachowski stated that while he could not comment specifically at this time, if a complaint is filed, the FCC is prepared to “exercise [its] responsibilities and…will act.”

Apple v. Samsung, the Aftermath

Apple and Samsung have both submitted filings following a billion-dollar jury verdict for Apple last month. Apple has requested an extra $535 million in damages, in addition to the permanent injunction it has already requested against sales of certain Samsung products. Apple bases this request on assertions that “the harm to Apple was deliberate”, claiming that “Samsung willfully diluted its trade dress.” Samsung, for its part, is alleging juror misconduct, and moving for judgment as a matter of law. Samsung cites a series of cases in which juror misconduct has led to a new trial, and argues that interviews given by the jurors “to news organizations provide evidence of misconduct serious enough to have influenced the verdict.”

Facebook Shareholder Fallout

Approximately 50 lawsuits have been filed against Facebook, Nasdaq, and the underwriters of Facebook’s IPO. Some attorneys predict “hundreds of arbitration claims to be launched against brokers and securities firms that pitched the company’s shares.” The cases allege that Facebook did not disclose to investors that the company’s growth “was suffering from a migration in customers to mobile devices from desktop computers.” (There is some concern about Facebook’s mobile device advertising model.) The company’s exposure to liability could be large, as the stock has dropped 47% from its IPO price. “IPOs are the most attractive kind of suit for the plaintiff’s bar,” says Professor John Coffee of Columbia Law School. Many of these lawsuits eventually conclude in settlement for 2-3% of the alleged losses. Many of the cases are already before Judge Robert Sweet in the Southern District of New York, and it is likely rest the cases will also be consolidated in New York.