Police must have probable cause to get a search warrant from a judge or make an arrest. This means that police must have a valid reason to think a person committed a crime before they can take these actions.
As facial recognition technology becomes more common, the question of whether a match constitutes probable cause becomes more important.
Use of facial recognition software by police
The Virginia legislature passed a restriction on police use of facial recognition technology that went into effect on July 1, 2021. This law prevents all law enforcement agencies in the state from buying or using facial recognition technology without authorization from the state legislature. However, lawmakers are already considering repealing the ban.
Facial recognition software and probable cause
The new legislation, which is currently awaiting a vote by Virginia lawmakers, would allow law enforcement to use facial recognition technology to identify suspects when there is a reasonable suspicion that the person committed a crime. However, it explicitly forbids police from using facial recognition matches as probable cause for an arrest or search warrant.
These restrictions on the use of the technology are a response to concerns that the software can misidentify suspects and is particularly unreliable when police use it to identify people with darker skin pigmentation. Additionally, the proposed legislation requires police to only use software that the U.S. Department of Commerce’s National Institute of Standards and Technology certifies as at least 98% accurate.
Though the current ban on the use of the technology passed with widespread bipartisan support, it appears repealing the ban also has similar support.