| No, looking up your face in a list of faces is searching FOR you, not searching you. Searching you means taking an inventory of the items on your person. It does not mean looking at you. In some cases, imaging you can be a "search" even where there is no physical contact (for example: a millimeter-wave scanner), but a photograph in a public place has never qualified as a "search" in the USA. I understand your feelings, but so far as I know things like gait recognition, facial recognition, or even an iris scan derived from an ordinary photograph have never qualified as a "search" under U.S. law. Feel free to correct me if I am wrong on this: it's quite difficult to prove something has _not_ happened. I think the legal line is not when it "becomes biometrics" or becomes identification. The legal line is when you are revealing a private property about an individual (for example, their blood type, or the contents of their pockets). Nothing visible to the naked eye in public is considered private, so nothing that derives identity from that public information is a "search". As a nice easy example... an officer smelling alchohol on the breath of a person in the course of a conversation is not a "search". An officer compelling that same person to breathe into a breathalyzer machine is. Applying the same standard to faces, you cannot make an individual put their eye to a scanner without reasonable suspicion, but if you can get a biometric scan from the invidual as they happen to walk about their day, doing that isn't searching them... |
There's a different standard that could apply with just a small amount of tweaking.
Many people's homes happen to leak IR out of their poorly-insulated windows, walls, and roofs. Anyone (police included) can get an IR camera and determine facts about what's going on in such a house. However, police must obtain a search warrant before doing so... despite the fact that the design of such a house means that it broadcasts all that information indiscriminately while one goes about one's day and the twin facts that IR cameras aren't dreadfully expensive and are available to anyone with the funds to get one.
The Supreme Court case that determined this hinges in part on things that would "previously have been unknowable without physical intrusion". This logic could be tweaked to cover things that would "previously have been unknowable without physical detention". The core problem with searches has never been the inconvenience involved in the search... it has always been the fact that you're being searched. New tech that removes the physical imposition of a type of search does not solve this problem. A long while back [0] NYPD was deploying mobile microwave scanners that they used to perform indiscriminate under-clothes searches of people who were committing the "crime" of being in public going about their day. IIRC, they wrapped this in «We're just looking for weapons, and it's only a pilot program, anyway!» language, but that doesn't change the fact that they were performing "stop and frisk" searches at scale.
[0] And maybe they're still doing this... I've not paid much attention to NYC's law enforcement insanity in quite a while.