Gianni PiantiniSenior Articles Editor

Due to the speed with which blockchain technology is advancing, courts will soon have to contemplate extending the Fourth Amendment to to information stored within a blockchain. With the increased use of blockchain technology and significant government control, the need for privacy protection for blockchain users is warranted. A blockchain is a decentralized ledger, where users record a history of transactions on a shared network. Blockchain technology’s popularity stems from its innate characteristics of immutability, trust, and anonymity. In addition, each time a blockchain user records a transaction on the record, or make changes to the record through consensus, the records are permanently stored on the network and are unalterable.

Blockchain technology provides a high level of privacy by ensuring that transaction details are shared only amongst the participants involved in those transactions. However, blockchain technology is not completely immune to breaches to its anonymity. Because a blockchain transaction requires transparency, a transaction may be associated with the identity of its user, destroying blockchain’s appealing traits of anonymity and privacy. As a result, such technology may have substantial implications on one’s sense of privacy, where sensitive information about an individual is involuntarily revealed to others, including the government.

This complex issue is especially prevalent with respect to facial recognition technology stored on blockchain. Facial recognition is especially useful for identification by law enforcement officials of an unknown individual. Consequently, facial recognition technology provides the government with the ability to use one’s facial image to identify or track an individual without the individual’s knowledge or consent through historical location data or through real-time identification, which infringes upon the individual’s expectations of privacy. The government is capable of removing anonymity by impairing the level of privacy individuals experience through facial recognition. As a result, facial recognition has incited an Orwellian dystopia that soon will require constitutional protection. On the extreme level of facial recognition surveillance, for instance, is the government in China, which uses blockchain to distinguish and label millions of Uighur Muslims for internment and organ harvesting, prompting distinct moral dilemmas.

Because all blockchain transactions are public and immutable, a vast diagram is being carved out by each transaction that allows government authorities to paint an accurate picture of where the transactions are taking place or going–or in the case of facial recognition data, where individuals are located and where they are going. Similar to GPS monitoring of a vehicle, the employment of facial recognition and logging location data allows the government to track every movement an individual makes simply by capturing images of that individual in public through real-time or historical identification. This procedure allows the government to access an individual’s identity by matching the facial image with other facial images stored on the blockchain via other transactions. The progression of facial recognition technology linked to a driver’s license, photograph on social media, surveillance cameras, and law enforcement body cameras is a looming danger to anonymity and should be regulated under the Fourth Amendment.

In keeping in line with advancing facial recognition technology, the Court should revisit Carpenter v. United States, which recently found that an individual does not lose Fourth Amendment protections in public settings. 138 U.S. 2206, 2244 (2018). Like cell phone location data, which individuals have a reasonable expectation to keep private, facial recognition surveillance reveals where individuals go, allowing the government to deduce personal relationships, religious or political views, employment information, and medical history.

Supreme Court precedence has held that individuals have no reasonable expectation of privacy in information freely observable by the public. Yet, it would be unduly burdensome, unfair, and unconstitutional to subject any given person to omnipresent government surveillance without consent or knowledge when individuals have no other choice but to display their face in public. The Court in Carpenter revamped the standard of publicly sharing data­; now, the Court examines “whether such data stems from a necessary action to participate in modern society.” It is evident that one must display their face in public to participate in modern society. Displaying one’s face in public is not truly voluntary, but rather, necessary. Nonetheless, the use of facial recognition leads to a host of other sensitive information stored on blockchain that is not visible by merely looking upon someone’s face. This sensitive information connected to an individual’s identity, is what individuals truly wish to keep private and is not traditionally information freely available to the government. The fact that the government can use facial recognition to identify an individual and reveal new information about the individual’s activities constitutes infinite possibilities of monitoring that have previously been deemed unconstitutional.

Applying Fourth Amendment protections to information stored on blockchain is one way to curtail such significant government intrusions.