Laura K. Donohue, Remote Biometric Identification
Comment by: Babak Siavoshy
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2137838
Workshop draft abstract:
Facial Recognition Technology represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to unique and novel questions of law and policy. Together, these technologies constitute what can be considered Remote Biometric Identification (RBI). That is, they give the government the ability to ascertain identity (1) in public space, (2) absent notice and consent, and (3) in a continuous and on-going manner. RBI fundamentally differs from what can be considered Immediate Biometric Identification (IBI)—or the use of biometrics to determine identity at the point of arrest, following conviction, or in conjunction with access to secure facilities. Use of the technology in this way is (1) individual-specific, (2) involves notice and often consent, (3) is a one-time occurrence, and (4) takes place in relation either to custodial detention or in the context of a specific physical area related to government activity. Fingerprint is the most obvious example of IBI, although more recent forays into palm prints fall within this class. DNA technologies also can be considered as part of IBI. The types of legal and policy questions raised by RBI differ from those accompanying IBI, and they give rise to serious constitutional concerns.
Part II of the Article details the recent explosion of federal initiative in this area. Part III considers the federal statutory frameworks that potentially apply to the current systems: government acquisition of individually-identifiable data, foreign intelligence surveillance, and criminal law legislative warrant requirements. It posits that the federal agencies involved have considerable, largely unchallenged authority to collect and analyze personally-identifiable information. Congressional restrictions on the exercise of such authorities generally don’t apply to biometric systems. Gaps in the 1974 Privacy Act and its amendments and the 1990 Computer Act, in conjunction with exemptions contained in the Privacy Act and the 2002 E-government Act minimize the extent to which such instruments can be brought to bear. The 1978 Foreign Intelligence Surveillance Act and its later amendments, similarly stops short of considered treatment of biometric technologies, generating serious questions about how and to what extent the provisions contained in the statute apply. Title III of the 1968 Omnibus Crime Control and Safe Streets Act and Title I of the 1986 Electronic Communications Privacy Act do not address facial recognition technology, much less the pairing of this with video surveillance. In the absence of a statutory framework with which to evaluate the current federal initiatives and their potential inclusion of facial recognition and video technologies, we are driven back upon Constitutional considerations. Part IV thus focuses on the Court’s jurisprudence in relation to four areas: the Fourth Amendment’s guarantee to protection against unreasonable search and seizure and the probable cause requirement for the issuance of warrants; the Fifth Amendment’s right against self-incrimination; the First Amendment’s protection of speech, assembly, and religion; and the Fifth and Fourteenth Amendments’ due process protections. Part V concludes the Article by noting the need for Congressional action in this area, as related to biometric technologies generally—as well as facial recognition systems—and contemplating the potential pairing of such technologies with video surveillance. Towards this end, it proposes both amendments to existing measures and the introduction of new restrictions specifically tailored to the biometric realm.