Ready or Not Congress, Here It Comes: The Expansion of Facial Recognition Technology Makes Its Way into Police Practices

“Good, old-fashioned police work” does not have the same meaning it had just two decades ago. The use of facial recognition technology by law enforcement agencies across America has proliferated within just the last decade, with some jurisdictions installing thousands of cameras across their cities. Local law enforcement agencies have tracked online social movements to expect demonstrations before they occur so that the agencies can increase police presence ahead of time. The expansion of the Black Lives Matter movement contributed to an increasing call for criminal justice reform from Americans demanding transparency and accountability from law enforcement agencies. Persons of color are especially at the detriment of this expanding technology because facial recognition technology algorithms disproportionately misidentify persons of color over their white counterparts. This can contribute to the already exacerbated policing of minority groups. Congress has been noticeably slow at promulgating an overarching legal framework for the proper use of facial recognition technology by law enforcement agencies. There are currently no comprehensive federal statutes in place that cover the proper use of facial recognition technology by law enforcement and governmental agencies, but the Facial Recognition and Biometric Technology Moratorium Act of 2021 promises a temporary ban on the use of the technology—if it ever passes. As law enforcement agencies continue to employ facial recognition technology, questions about the constitutionality of this technology will inevitably make their way into federal courts across the country. This Note provides an overview of constitutional challenges that will most likely arise as a result of the use of facial recognition technology and advocates for a permanent ban on the use of such technology by law enforcement agencies.