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79 Wash. & Lee L. Rev. 849 (2022-2023)
The Computer Got It Wrong: Facial Recognition Technology and Establishing Probable Cause to Arrest

handle is hein.journals/waslee79 and id is 839 raw text is: The Computer Got It Wrong: Facial Recognition Technology and Establishing Probable Cause to Arrest T.J. Benedict* Abstract Facial recognition technology (FRT) is a popular tool among police, who use it to identify suspects using photographs or still-images from videos. The technology is far from perfect. Recent studies highlight that many FRT systems are less effective at identifying people of color, women, older people, and children. These race, gender, and age biases arise because FRT is often trained using non-diverse faces. As a result, police have wrongfully arrested Black men based on mistaken FRT identifications. This Note explores the intersection of facial recognition technology and probable cause to arrest. Courts rarely, if ever, examine FRT's role in establishing probable cause. This Note suggests a framework for how courts can evaluate FRT and probable cause. Case law about drug-sniffing dogs provides a starting point for assessing what role an FRT identification should play in probable cause determinations. But drug dogs are not a perfect analogue for FRT. Two important differences between these two policing tools warrant treating FRT with greater scrutiny than drug dogs. First, FRT has baked-in racial, gender, and age biases that drug dogs lack. Second, FRT is a digital policing tool, which recent * J.D. Candidate, Class of 2022, Washington and Lee University School of Law; Class of 2017, University of Richmond. Thank you, Professor Alex Klein, for your guidance and insight during all stages of the Note writing process. I'm also grateful to the W&L Law Review upper board for their meticulous work and thoughtful editing. Finally, thank you to my parents for your constant support. 849

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