Ignore The Police!
by Bill Rounds
How to Vanish
by Bill Rounds:
Foreign Drivers License Protects Families
For the past
few months, police departments have been using a new
iris scanning device to identify people they encounter. Many
more police departments will begin using this device soon. The scanner
can be held up to the eye of any person and almost
instantly identify them more accurately than a fingerprint.
Police have imposed restrictions on themselves to prevent misuse
of iris scanners. Like a chubby kid guarding a Happy Meal, indulgence
is more likely than restraint.
iris scanners are limited to checking the person scanned against
a national database of iris scans. This database presumably only
contains criminals, children and individuals who may need assistance,
like alzheimers patients. The devices are not supposed to be able
to capture and store new entries. These self-imposed limitations
may only be temporary.
Iris Scans Are Probably Unconstitutional
yet tested, there are some potentially strong constitutional challenges
to many iris scans that are likely to occur. If you have a reasonable
expectation of privacy in some information or item, the police need
a warrant to conduct a search. (Katz
v. United States) There is no reasonable expectation of privacy
for things that are in the plain view of the public. (Texas
v. Brown) Technologies that enhance the senses to be able to
see what is in plain view, like common binoculars, can be used by
police without a warrant. (Dow
Chemical v. United States) Something that is not visible to
the naked eye is not in plain view. (California
v. Ciraolo; Kyllo
v. United States; People
v. Arno) Police may also conduct a search that would otherwise
require a warrant if they get consent. (Schneckloth
An image of
your iris and the detail of your iris is apparently very important
information. Many people might reasonably expect to have a right
to privacy in that intimate part of their body. Although the iris
is held out to the public, the very intimate details, so much detail
that the iris becomes a unique identifier, is not held out to the
public because nobody can see that with the naked eye. A very powerful
technology that can see more than the naked eye, even upon very
close inspection, is required. Thus, such a search will likely be
unconstitutional without a warrant.
Do Not Consent
To An Iris Scan
If you agree
to have your iris scanned for identification purposes, you give
up any chance you had of fighting the constitutionality of a warrantless
iris scan. Simply stating that you do not consent to having an iris
scan taken should be sufficient.
Let Them Scan Your Face Either
devices are also capable of scanning faces for identification purposes.
Preventing these scans is a bit more complicated because your face,
and the ability to recognize you from your face, is most definitely
held out to the public in plain view. To prevent face scanning requires
knowing at what point in a police encounter the face scan is taking
place. Knowing this will help you to know if you must submit or
if you are free to leave.
Police: "Free To Leave" Encounters
stop people on the street in what is known as a "consensual" encounter
for no reason at all. Police could potentially ask you for a face
(or iris) scan during this "consensual" encounter. If you reasonably
think you are free to leave you can ignore everything the police
are saying and just walk away. (Florida
v. Royer; Michigan
v. Chesternut). If you aren't sure, or you just want to
be polite, one of the best things you can say is "am I free to leave
or am I being detained?" Stopping the encounter as soon as possible
before a scan of your face can be required is the best way to prevent
a facial scan. If you aren't free to go, you are being detained.
To detain you,
the police need reasonable suspicion based on articulable facts
that you are, have been, or will be committing a crime. (Terry
v. Ohio) If a reasonable person thinks that they aren't
free to go, they are being detained. (United
States v. Mendenhall). Here is where it gets a bit tricky. Some
states permit you to remain silent to questions at this point, but
many require you to at least provide your name. (Hiibel
v. 6th Judicial District Court of Nevada) If you are in a no
name state, you may be able to refuse a facial scan. This will probably
make the police pretty mad so it might not be recommended. In states
where your name is required, there is probably nothing you can do.
If the police
then have probable cause to believe you committed a crime, they
may arrest you. They will take you into the mug shot room where
a long line of celebrities have taken their most memorable photos.
At this point, there is nothing you can do to keep the police from
putting your face in their facial recognition database.
unconsensual iris scans are probably unconstitutional. Face scans
aren't as inherently unconstitutional, but can still be prevented.
If you are a law abiding citizen, these, and other tips from HowToVanish,
can help you protect more of your privacy from one of the worst
invasions of privacy that exist, police encounters.
with permission from How to
Rounds, J.D. is a California attorney. He holds a degree in Accounting
from the University of Utah and a law degree from California
Western School of Law. He practices civil litigation, domestic
and foreign business entity formation and transactions, criminal
defense and privacy law. He is a strong advocate of personal and
financial freedom and civil liberties.
© 2011 How
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