The following is adapted from a presentation by Dr. Kenneth P. Nuger of the San Jose State University Political Science Department.

Biometric Technologies: automatic methods for the identification or identity verification of individuals using physiological or behavioral characteristics.

Introduction
Autonomy vs. Safety and Privacy vs. Security... Are these values compatible in today's world? How much of one might be acceptably weakened to strengthen another?

The people of the United States value their privacy and autonomy above all else, ardently protecting their rights as individuals. These rights -- life, liberty, and the pursuit of happiness -- are, after all, the very concepts the U.S. was founded upon. An important question is that, given the very real increase in acts of fraud and terrorism, will our society choose to modify these priorities in response - sacrificing privacy for security, perhaps? The challenge we currently face is how advanced technologies like biometrics can be used to provide security, while preserving privacy and autonomy.

This article is geared at introducing the legal issues that technologies like biometrics would pose and their potential impact on our societal and individual rights. A point of departure for our dialog on legal implications is the concepts of due process of law and privacy, both of which have their origins in the Constitutional Amendments.

Constitutional Concerns
The rights to privacy, to due process and preventing unreasonable search and seizure are grounded in the following U.S. Constitutional Amendments.

Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Fifth Amendment Any person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger; nor shall any person be subject, for the same offense to be twice put in jeopardy of life or limb; nor shall any person be compelled , in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation. Fourteenth Amendment Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.

Due Process
The concept of due process requires the United States government to carry out its obligations in a reasonable manner. The government is charged with supplying particular rights to eligible individuals. If a government agency is going to deem a person ineligible it must have sound reason and it must also provide a timely appeal process. The method used for appealing ineligibility is the pretermination or predetermination hearing. This is a hearing prior to the actual suspension of privileges.

Certainly there have been instances when the government has denied rights without providing a hearing and, because it was justified as in the interests of public safety, it was ruled that due process had not been violated. Such cases include the seizing of mislabeled vitamins¹ and spoiled food² and denying employment to a cook in a defense contractors plant³.

However, in the case Goldberg v. Kelly⁴, the Supreme Court determined that pretermination hearings were required prior to denying a person Aid to Families with Dependent Children (AFDC) payments. Since that ruling (1970), hearings have become a precedent for meeting the terms of due process.

Besides a timely hearing, another aspect should be considered with biometrics use, the issue of information accuracy. Case law illustrates that government decisions based on inaccurate data or flawed procedures are unconstitutional⁵. The accuracy of a biometric device then comes into question as do the implementation procedures. If poor implementation or an error in the device itself result in, say, a commercial driver being denied entry to a state, courts may determine that due process has been violated.

As we can see, these are major issues for industry and the government agencies using biometrics. In order to effectively use biometrics, agencies will have to train their personnel to use the biometric device(s) for accuracy and they will need to establish timely appeal procedures⁶.

Privacy
Legal inquiries related to due process may not be as numerous as those related to issues of privacy. Questions that are being raised around issues of privacy include the following:

á Does the taking of a biometric measurement constitute a search?
á Does it constitute a reasonable search?
á Can biometric information be used in both criminal and non-criminal searches and suspicionless searches?
á Could information gathered for one purpose be used for another purpose?
á Which methods of gathering information are OK and which methods invade our personal privacy?

The privacy rights rooted in the fourth, fifth and fourteenth amendments -- which protect an individual from unreasonable search and seizure, from self incrimination and which preserve an individual's control over personal information -- will come up for debate as we find more applications for biometric technologies.

Fourth Amendment
In Katz v. United States⁷ the Supreme Court clarified that the fourth amendment protects people, not places. Therefore, wherever a person has a reasonable expectation of privacy he/she is entitled to be free from unreasonable government intrusion⁸. Again, however, we can, find examples of the government justifiably offsetting a persons fourth amendment rights when it is in the interest of public safety.

So the important question is, does the taking of a biometric reading constitute a search? Most courts will answer, yes, as they have done for other physiologically–based information gathering, like fingerprinting ⁹or drug testing¹⁰. It is likely, in the long run, that the government will be given the same latitude for biometric applications as they have been given for drug testing. In National Treasury Employees Union v. Von Raab¹¹, the court allowed drug testing on large groups of federal employees, even if none were suspected of drug use. This is called "suspicionless search." Until Michigan v. Sitz¹², a case involving sobriety checkpoints, suspicionless search was reserved for non-criminal searches. In Sitz, the Supreme Court allowed information from random sobriety checkpoints to be used to link an individual to a criminal act, thus expanding suspicionless searches to criminal searches.

Fifth Amendment
To complicate matters, the fifth amendment protection from self-incrimination has been expanded to include both criminal proceedings¹³ and non-criminal procedures that might result in criminal prosecution¹⁴.

The actual methods used to collect biometric data will be controversial as well, particularly if they are so intrusive that they 'shock our conscience.'¹⁵ In Rochin v. California,¹⁶ (1952) the results of a forced stomach pumping was determined invalid in court because this forced self-incrimination was so intrusive and so shocking¹⁷. What the courts consider non-intrusive is exemplified in Breithraupt v. Abram¹⁸, decided in 1957. In this case, a blood sample was taken from an unconscious suspect involved in a deadly car accident. The court ruled that this evidence was admissible because blood samples, like fingerprinting and urine samples are commonplace, relatively non-intrusive, and acceptable to society. And, Schmerber v. California¹⁹ reiterated that forced writing, speaking, fingerprinting, and walking or gesturing could be used for identification in court. And finally, Perkey v. Department of Motor Vehicles²⁰, a civil case dealing with issuing drivers licenses, upheld that since fingerprinting did not penetrate the skin, it did not violate personal dignity nor privacy rights.

Given the rulings in the above cases, we can assume that biometric measures will be treated in the same way - because many of the biometric technologies use commonplace and socially acceptable actions like submitting a fingerprint or handwriting sample. So an important consideration, as biometrics are developed and enhanced, is their level of intrusiveness.

Personal Privacy and Government Police Powers
An important question in protecting personal privacy is: Could, would and should personal information gathered for one purpose be used for another purpose?

Professor William Prosser, in his seminal article on privacy, notes that individuals have no less than four areas of privacy protection²¹. These four are a persons control over:

á seclusion, solitude and private affairs,
á embarrassing public disclosures about private facts,
á publicity that places one in a false light and
á appropriation of one's name or likeness for someone else's gain.

Yet again, as we have seen in other areas, the government does have the right to supersede an individual's rights to further broad public interests. Governmental rights are established in Article 1, Section 8 of the Constitution and the tenth amendment in the Bill of Rights, and obligate the federal and state governments to further the health, safety and welfare of the people in their jurisdiction.

As technology enables more and more information to be gathered, sorted, stored and shared, how will we assert personal controls in the four areas listed above?

Legislation may be the most effective solution for establishing limits. The state of New York amended section 139-a of its Social Services Law to limit the use of finger imaging. The law stipulates that finger imaging data can not be used for any purpose other than the prevention of multiple enrollments for home relief²². This potential solution creates another group of repercussions. If states implement different regulations regarding the use of biometric data, the resulting patchwork will be inefficient and possibly detrimental. And uniform Federal legislation might prove more difficult to achieve in light of the current trend in favor of state's rights/autonomy. The 1974 Privacy Act may serve as a useful model for balancing the need for biometrics with individual privacy²³. The law's provisions require federal agencies to keep records with due regard for the privacy interests of the people who are the subject of those records and it gives these people some control over the collection, maintenance, use and dissemination of the information²⁴.

Privacy in the Private Sector
The proliferation of the potential uses for biometrics complicates the job of preventing abuses. And the temptation to use these technologies in unethical ways for economic gain may be greatest in the private sector. An insurance company, for example, could use medical information from a smart card to deny a person benefits, having determined them to be too great of a risk. A business could use keystroke monitoring to increase productivity -- but could they increase productivity by threatening an employee with termination based on keystroke data?

In the private sector, individuals will have fewer protections than in the public sector as they will not be able to rely on the common law, constitutional rights, and statutory provisions that are used in the public sector. Individuals and therefore employees must rely on labor management and consumer protection agreements, and laws that define these relationships to represent them. One such law is the Electronic Communications Privacy Act of 1986, an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968²⁵. This creates broad civil and criminal penalties for the unauthorized interception and disclosure of wire, oral or electronic communications. The statute defines electronic communications as any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo optical system that affects interstate or foreign commerce²⁶.

Just as government can claim their actions to be necessary to further the interests of government, businesses may claim that their actions are necessary to further the normal course of business. Could smart badges, with a small microcomputer that allows the employer to track the whereabouts of an individual, be used for more than normal business operation?²⁷ With this new technology, every movement can be monitored, including how often and long one stays in a restroom, around the coffee machine, or visiting fellow employees away from a workstation. At what point do these uses of biometrics pass beyond the normal course of business and into the intentional infliction of emotional distress?

Another example of a statute that may affect biometric applications in the private sector is the Fair Credit Reporting Act²⁸. This act, initially intended to curtail credit agencies from the indiscriminate disclosure of personal data including one's financial status, medical history and sexual relationships to any interested party could become the focus of much litigation as businesses increasingly expand the collection, use and dissemination of biometric data.

If the state governments fail to ensure that privacy interests are not breached by biometrics, Congress may be forced to respond to how the private sector chooses to use biometric data. If the private sector pushes the application of biometrics past the evolving standards of decency of our democratic society, Congress may well respond by actively curtailing unprincipled biometric applications under its power to regulate interstate commerce.²⁹

Conclusion
How will we answer the questions asked here? And the questions yet to be posed by emerging technologies? As with other applications of technology, the cases brought before the legislatures and courts will guide the applications. To minimize the problems and make the implementation of biometrics successful, it is important to take into account the broad societal and legal implications as plans are developed. With careful forethought we should be able to achieve an acceptable balance between privacy and security, safety and individual

Footnote

¹Ewing v. Mytinger and Casselberry, Incorporated, 339 U.S. 594 (1950).
²North American Cold Storage Company v. Chicago, 211 U.S. 306 (1908).
³ Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961).
⁴ 397 U.S. 254 (1970).
⁵For example, many drug testing cases during the 1980's, before the United States Supreme Court decided Von Raab, overturned employee dismissals whose drug tests turned up positive because early urinalysis testing approached only a 95-99% accuracy range.
⁶ See Goldberg v. Kelly, 395 U.S. 254, 266 (1970) which held that public assistance to qualified individuals is a right and that the interests of an eligible recipient to access food, clothing, housing, medical care outweighs the state's interest in the efficient service delivery. Therefore, the recipient's due process rights would be violated if an eligible recipient was erroneously denied assistance.
⁷ 389 U.S. 347 (1967).
⁸ Id., at 351. ⁹ In Smith v. U.S., 324 F.2d. 879 (D.C.Circ. 1963), the court ruled in part that, at least as part of the normal identification process, taking a photograph or fingerprint is consistent with fourth amendment requirements.
¹⁰ See National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).
¹¹ Id.
¹² 494 U.S. 444 (1990).
¹³ The fifth amendment states in part that "No person....shall be compelled in any criminal case to be a witness against himself.
¹⁴ The fifth amendment states in part that "No person....shall be compelled in any criminal case to be a witness against himself.
¹⁵ In Rochin v. California, 342 U.S. 165 (1957), the Supreme Court declared that police forcing a drug suspect to have his stomach pumped was police behavior that shocked the conscious of a civilized society and therefore, violated the fourth amendment ban against unreasonable searches and seizures.
¹⁶ 342 U.S. 165 (1952).
¹⁷ Id.
¹⁸ 352 U.S. 432 (1957).
¹⁹ 384 U.S. 757 (1966).
²⁰ 721 P.2d. 50 (Cal. App. 1986).
²¹ William Prosser, "Privacy," 48 California Law Review 3 (1960). Generally, one has control over ones seclusion, solitude and private affairs, over embarrassing public disclosures about private facts, over publicity that places one an a false light and appropriation of one's name or likeness for someone else's gain.
²² N.Y. Soc. Serv. Law 139-a (3)(b). This law stipulates in part that any finger imaging data "may not be used, disclosed or redisclosed for any purpose other than the prevention of multiple enrollments in Home Relief, may not be used or admitted in any criminal or civil investigation, prosecution, or proceeding, other than a civil proceeding pursuant to section 145-c of this article," which addresses individuals attempting to defraud the welfare system.
²³ 5 U.S.C. Sect. 552a.
²⁴ See Martin N. Flics, "Employee Privacy Rights: A Proposal." 47 Fordham Law Review 155 (1978).
²⁵ 18 U.S.C. Sects. 2510-2520.
²⁶ 18 U.S.C. Sect 2510(12).
²⁷ See House Subcommittee on Crime and Criminal Justice Hearings, May 17, 1995, discussing sophisticated tracking and monitoring technologies that can be used to supervise a variety of individuals, including inmates, people on probation, or if adapted to the private sector, employees.
²⁸ Codified as 15 U.S.C. Sects 1681-1681t (1976).
²⁹ U.S. Constitution, Article 1, Section 8, Clause 5.