WASHINGTON -- When tens of thousands of football fans packed into a Florida stadium for Super Bowl XXXV, they weren't merely watching the game: They were also being watched.
Face-recognition software surreptitiously scanned everyone passing through turnstiles and flashed probable matches with the mugs of known criminals on the screens of a police control room.
Legal experts say the practice, which its defenders say is an unintrusive way to prevent crime, raises novel questions about the relationship between technology, the law and the future of police surveillance.
As cameras become ubiquitous, as face-recognition technology becomes more accurate, and as databases of known faces grow, privacy advocates fret that everyone from direct marketers to the FBI will be able to track your movements and compile detailed dossiers on your life.
On Thursday, the American Civil Liberties Union condemned the Super Bowl system -- provided free by its manufacturers -- as privacy-invasive: "We do not believe that the public understands or accepts that they will be subjected to a computerized police lineup as a condition of admission."
In a letter to the mayor and city council of Tampa, Fla., the ACLU's Florida affiliate asked for public hearings on the topic and requested "all documents" and databases relating to the video surveillance.
The letter said the ACLU believes "this activity raises serious concerns about the Fourth Amendment right of all citizens to be free of unreasonable searches and seizures."
That's a phrase borrowed from the Fourth Amendment to the U.S. Constitution, which explicitly outlaws "unreasonable searches and seizures" -- and implicitly allows reasonable ones.
The Fourth Amendment, like most of the Constitution, only restricts the actions of government officials. It doesn't prohibit private firms such as banks or stores from face-scanning, although companies may pledge to limit the practice in order to reassure their customers.
That leads to a key question: Is this practice, which appears to gaining popularity among law enforcement agencies, legal? Can the word "search" in the Constitution stretch to include matching facial characteristics against a database?
Eugene Volokh, a law professor at UCLA, thinks the practice is constitutional when it takes place at a public event.
"There's no Fourth Amendment problem if the government is simply observing -- or even recording -- what goes on in public," Volokh says. "For constitutional purposes, that's just not a 'search,' because there's no legitimate expectation of privacy. Nobody thinks that their appearance at the Super Bowl is something that is hidden from the roving eye."
In fact, police have long used high-powered binoculars to monitor crowds at sporting events. And nobody says a cop shouldn't scan the crowd to try to recognize someone on the FBI's most-wanted list.
Andrew Grosso, a former federal prosecutor, concedes that under traditional privacy law, the practice may be legal -- but predicts courts will change their minds if Americans begin to object to automated surveillance.
"Cameras make a practical difference," says Grosso, now a lawyer in private practice in Washington. "They make it practically possible to monitor things that one just never had the manpower to monitor before."
"If we've reached the point where we can't go to a football game without having our photos run through a database in Washington, then we'll only have privacy when we're sitting in our living rooms," he says.
Marc Rotenberg, director of the Electronic Privacy Information Center, says automated face-matching is different from current practice. "This is not a cop with a set of binoculars looking for rowdy fans."
Rotenberg, who served on an American Bar Association panel on the topic, says "there appears to be no independent review or accountability in the use of the system. What happens if there is abuse?"
In a report, the ABA's influential criminal justice section recommends that surveillance should not be clandestine.
"Pre-surveillance notice should be given by the appropriate authority when deterrence is the primary objective of the surveillance (as with some types of checkpoints) or when those potentially subject to the surveillance should be given the option of avoiding it," the ABA says.
Super Bowl attendees could glimpse cameras, but they were not told that their images were being digitized and immediately compared against a database assembled by law enforcement agents.
Jim Harper, founder of Privacilla.org, offers a compromise: "Law enforcement should be required to dispose of the biometric data of innocents once an investigation has closed. They should probably be able to keep biometric data on people convicted of serious crimes."
Four companies, Graphco Technologies, Raytheon, Visage Technology and VelTek International, teamed up to provide the face-recognition system, which was used by local, state and federal police during the game and the week that led up to it.
Graphco says its FaceTrac software was set up to scan crowds and sensitive stadium areas for faces, build "face print" templates and recognize matches against images stored in a database.
Hide Out Under a Security Blanket
