The Fourth Amendment Limits of Facial Recognition at the Border

by Emmanuel Abraham Perea Jimenez

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Abstract

On any given day, hundreds of thousands of people enter the United States through ports of entry along the Mexican and Canadian borders. At the same time, the Department of Homeland Security (“DHS”) seizes millions of dollars’ worth of contraband entering the United States annually. Under the border-search exception, border officials can perform routine, warrantless searches for this contraband, based on no suspicion of a crime, without violating the Fourth Amendment. But as DHS integrates modern technology into its enforcement efforts, the question becomes how these tools fit into the border-search doctrine. Facial recognition technology (“FRT”) is a prime example. To date, no court—and few legal scholars—have addressed how the Fourth Amendment would regulate the use of FRT at the border. This Note begins to fill that gap.

This Note contends that, after Carpenter v. United States, the Fourth Amendment places at least some limits on the use of FRT at the border. Given the absence of caselaw, this Note uses a hypothetical border search to make three core claims. First—distinguishing between face verification and face identification—this Note argues that face identification constitutes a Fourth Amendment “search” only when the images displayed to a border official reveal “the privacies of life.” Second, because of its invasive nature, this form of face identification is a nonroutine border search and is unconstitutional when conducted without reasonable suspicion. Lastly, this Note concludes that a border official’s reasonable suspicion must be linked to a crime that bears some nexus to the purposes underlying the border-search exception.

The Fourth Amendment Limits of Facial Recognition at the Border

by Emmanuel Abraham Perea Jimenez

Click here for a PDF file of this article

Abstract

On any given day, hundreds of thousands of people enter the United States through ports of entry along the Mexican and Canadian borders. At the same time, the Department of Homeland Security (“DHS”) seizes millions of dollars’ worth of contraband entering the United States annually. Under the border-search exception, border officials can perform routine, warrantless searches for this contraband, based on no suspicion of a crime, without violating the Fourth Amendment. But as DHS integrates modern technology into its enforcement efforts, the question becomes how these tools fit into the border-search doctrine. Facial recognition technology (“FRT”) is a prime example. To date, no court—and few legal scholars—have addressed how the Fourth Amendment would regulate the use of FRT at the border. This Note begins to fill that gap.

This Note contends that, after Carpenter v. United States, the Fourth Amendment places at least some limits on the use of FRT at the border. Given the absence of caselaw, this Note uses a hypothetical border search to make three core claims. First—distinguishing between face verification and face identification—this Note argues that face identification constitutes a Fourth Amendment “search” only when the images displayed to a border official reveal “the privacies of life.” Second, because of its invasive nature, this form of face identification is a nonroutine border search and is unconstitutional when conducted without reasonable suspicion. Lastly, this Note concludes that a border official’s reasonable suspicion must be linked to a crime that bears some nexus to the purposes underlying the border-search exception.