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Monitoring biometric technologies in a free society. (American Thought).

CONTROVERSY CONTINUES in Washington over Internet privacy legislation to deal with unwanted marketing online. However, that debate has been overshadowed by the rise of public surveillance technology, particularly biometrics, which are even more invasive, using individuals' unique physical characteristics for purposes of identification and/or authentication. Biometrics gained at the 2001 "Snooper Bowl" when fans at Super Bowl XXXV were observed by surveillance cameras and their faces compared to a database of criminals using face-recognition software. After the 9/11 terrorist attacks on the World Trade Center and the Pentagon, the idea of government-issued national ID cards containing some form of biometric identifying information took root.

Face-recognition cameras are now common at airports, on city streets, and in other public places. Biometric technologies also include retina or iris scanners, digitized fingerprints and handprints, and voiceprints. They even include implantable rice-sized radio frequency chips coded with personal information that can be displayed by a scanner.

Biometric technologies can benefit us. Such technologies will find their way into cell phones and mobile computers, car doors, doorknobs, and office keys. They can bolster online commerce, helping prevent identity theft. Implanted microchips have been used to help track pets. Especially for our descendants, implantation of scannable biometric chips may become more accepted and practiced, as has already been done to a limited extent for Alzheimer's patients. For example, they could help locate a missing child or transmit medical information to doctors.

As Paul Saffo of the Institute for the Future put it, "The computer has jumped off our desktops and it is insinuating itself into every corner of our lives. Now it's finding its way into our bodies."

Still, no one wants to be treated like a human bar code by the authorities. What are the benefits and concerns surrounding the further deployment of biometric identification techniques into various facets of American life? Do they promise new levels of physical security and more-secure commerce, or do they threaten fundamental values of privacy and even liberty itself? What are the distinctions between governmental and commercial deployment of biometric technologies, and what principles can help identify proper and improper uses?

Biometrics range from completely involuntary to partially voluntary to totally voluntary. The most-pressing threat to liberty is the first, all-inclusive database mandated by government--a national identification card with biometric identifiers. The threat of such an D is apparent--it is involuntary, will increase unwelcome surveillance, and will undercut a presumptive right to maintain anonymity. It would devolve into a general law enforcement tool having nothing to do with the terrorism that prompted recent calls for national IDs, and would blur the distinction between public and private databases.

A less-sweeping biometric database would be partial, containing criminals and suspects, but not the general population, such as face-recognition cameras deployed in public places like airports and sporting events. Individuals would be observed, but presumably only to see if they matched a face already in the database by way of proper legal procedures. Nevertheless, many observers doubt that governments can be trusted to discard incidental data collected on innocents.

Finally, private applications of biometrics would be those that contain data solely on individuals who have garnered clearance for a particular private purpose (access to financial records, for instance), as opposed to governmental databases. Here, the technologies hold considerable promise.

The challenge of the biometric future is to prevent mandatory national ID cards, ensure Fourth Amendment protections with respect to public surveillance, and avoid the blurring of public and private databases. Private industry must generate its own information, for purposes limited by the market's twin engines of consumer choice and consumer rejection.

Government vs. private databases and their risks to liberty. In private hands, biometric technologies enlarge our horizons. They expand the possibilities of a market economy by bolstering security in private transactions ranging from face-to-face authentication to long-distance commerce.

Government interference with the evolution of biometrics or, worse, domination of the technology changes the picture dramatically. Governments can use the technology to restrain us and violate our liberty and privacy, giving the entire biometrics industry a black eye and turning society against the technology. Information acquired through the commercial process must be kept separate from that extracted through government mandates. Similarly, private companies should not have access to information that government has forced individuals to relinquish. To the extent that private companies encourage the blurring between governmental and market databases, they ensure the industry's regulation and politicization.

"We don't automatically have to call it a national ID card; that's a radioactive term," Rep. Jane Harman (D.-Calif.) said in 2002. The most-pressing threat to privacy and individual liberty is an all-inclusive involuntary database--one mandated by government in which everyone is forced to participate.

This kind of database corresponds to proposed national ID card systems with biometric identifiers. The identifiers would likely take the form of mathematical representations of one's face, iris, fingerprints, and so forth, encoded into a magnetic strip or chip.

No such thing as a "voluntary" national ID card. Many proponents claim that such a national ID system could be voluntary, but it doesn't seem possible to sustain a voluntary system. Terrorists would not volunteer to sign up, Cato Institute constitutional studies scholar Robert A. Levy argues, and the "predictable failure of a voluntary system will lead to compulsory IDs."

Even a "voluntary" ID would contain underlying compulsory elements. For example, part of the ID push by the American Association of Motor Vehicle Administrators, which advocates streamlining drivers' license information across the states, would link Immigration and Naturalization Service files as well as Social Security and Bureau of Vital Statistics data. By incorporating information collected across agencies, the AAMVA's proposed ID starts off as fundamentally compulsory since it would ride atop already administered mandatory databases.

The motive behind the recent interest in a national ID is apparent, even understandable. Backers claim that such a system might have thwarted the 9/11 attacks. It doesn't follow, though, that more surveillance and tracking of ordinary citizens would improve security. Rather, still-unresolved intelligence failures seem to have been the real problem. By and large, the terrorists were who they said they were and could have obtained IDs through official processes.

"Show us your papers"

Many critics of national IDs, such as Marc Rotenberg of the Electronic Privacy Information Center, have noted that mandatory IDs would lead to many new checkpoints in society that do not exist now. That capability would lead even private entities to ask for ID everywhere--at the cineplex, the concert, the stadium, Disneyland, etc. Governmental abuse is especially worrisome. Syndicated columnist William Safire called the national ID a "discredit" card, and worried that ultimately its size could then be reduced for implementation. That is the ultimate expression of the "Big Brother" scenario that scares so many. It will no longer be "show us your papers." One's vital statistics will be readily scannable by the authorities.

Bureaucratic mission creep means that ID would morph into a general law enforcement tool having nothing to do with the terrorism or national security concerns that presumably prompted its creation, likely covering such things as underage drinking, petty crime, fighting the drug war, tracking deadbeat dads and welfare cheats, registering guns, and so forth. The impulse for private-sector businesses to piggyback on such an ID would be irresistible, much like the widespread use of the Social Security number by private companies like banks that itself is an unfortunate source of identity theft.

An unnecessary loss of anonymity. The effect of surveillance on political speech and anonymity can become oppressive. Undermining anonymity effectively abolishes civil disobedience.

Citizens have a right to legitimate, peaceful civil disobedience and communication. Anonymity and pseudonymity are "cornerstones of free speech," as noted by attorney Jonathan Wallace in 1999. "The Supreme Court has consistently held that anonymous and pseudonymous speech is protected by the First Amendment," he said. "In [a] recent statement ... the Court invalidated an Ohio ordinance requiring the authors of campaign leaflets to identify themselves." In 2002, the Court struck down an ordinance requiring Jehovah's Witnesses and other door-to-door canvassers to carry written identification permits.

Particularly in an era in which the Internet can facilitate anonymous speech and in which businesses are developing tools whereby individuals can shop anonymously, a national ID would represent a bizarre rejection by the government of its own alleged commitment to privacy. A mandatory biometric ID's detrimental impact on individual liberty is apparent. It is involuntary; it will blur public and private databases and facilitate increased unwelcome surveillance; and it undercuts a presumptive right to anonymity. A national ID poses another, more-practical problem as well--it dampens critical competitive market forces that would otherwise drive improvements in authentication technology.

Aside from the national ID's involuntary character and incompatibility with personal and political liberty, the potential uses of ID technologies are too divergent to entertain seriously the idea of a single national, government-sanctioned identification card. Few want all parties, governmental or not, to have access to all the information that exists about themselves in a central location. Having numerous IDs, rather than a single one, can be perfectly appropriate in civil society. Moreover, the requirements of commercial and social society differ from the limited needs of official civic and political identification.

Often, IDs won't need to be "national," but, rather, localized. We typically want our IDs to contain only that information we choose to release for limited purposes. An ID that functions as an office key, for instance, may not need to be part of a database containing bank records, Social Security payment history, medical records, or one's last will and testament. A compulsory government ID that makes pooling irresistible is unwarranted and detrimental to individual rights, privacy, and security.

Governmental "bad guy" databases. Another kind of biometric database--a partial one containing data on criminals, suspects, and other "wanted" individuals--isn't as sweeping as the total database underlying a national ID card. Such databases would correspond to those underlying the face-recognition cameras used during Super Bowl XXXV. During surveillance in public areas, faces are scanned and features converted to a mathematical representation, presumably only to see if there is a match with someone already in the database.

If we start with the assumption--and granted, it is an assumption which requires taking law enforcement at its word that the incidental images of innocent individuals are not recorded or are otherwise immediately discarded, face camera surveillance may not count as invasive surveillance of ordinary citizens in the manner critics fear. In other words, the information collection--that pertaining to criminals--has already taken place, presumably under appropriate legal procedures. Nevertheless, concern over whether governments can be trusted to discard incidental data collected on innocents is valid.

Properly restrained, cameras might even cut down on unwanted searches. If we assume a setting where police inspection is legitimate (for example, if cameras are merely substituting for uniformed officers on the beat), there may be less need for random, invasive searches. As UCLA law professor Eugene Volokh notes, the camera is more impartial and creates none of the "demeaning pressure" one feels to be "especially submissive" in a search or pullover by a police officer, and there is no wondering whether one is stopped on the basis of "sex or race or age."

Still, authorities might use the cameras to begin learning about particular subjects, thereby violating Fourth Amendment rights by initiating unwarranted searches. It is easy to create a record of individuals' movements without their knowledge. People are understandably bothered and already consider cameras a privacy invasion. Critics also note that "People behave in self-conscious ways under the cameras, ostentatiously trying to demonstrate their innocence or bristling at the implication of guilt," like a group of teens who give "the finger" to a camera pivoting to follow them or protestors who wear masks in defiance of cameras.

Critics of camera surveillance systems do have valid fears. Thus, such systems need to be overloaded with checks and balances. Although there is no general expectation of privacy in public places, neither is there an expectation that one will be purposefully identified and one's movements mapped by the authorities. Probable cause and court orders must apply in a biometric, digital age. At some point, tracking of an individual without a court order crosses into the territory of an unreasonable search.

The traditional interpretation of the Fourth Amendment as protecting places--our homes--evolved with the 1967 Katz v. United States decision, in which a telephone booth had been bugged. In that case, the warrantless eavesdropping was found to have violated the Fourth Amendment rights, beyond the home.

That the Fourth Amendment protects people and not places must be a defining constraint with respect to the use of surveillance technology by the government. However, what will count as a search in the future--given the ease of very intimate, up-close surveillance--remains unclear. For instance, with respect to the government's use of technology to observe an individual's home (in this case, thermal imaging), the 2001 Kyllo v. United States decision seems favorable to privacy rights at first glance. The Court found that "obtaining information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a protected area constitutes a search--at least where (as here) the technology in question is not in general public use."

Yet, as noted by Mark Milone in Business Lawyer, Justice John Paul Stevens' dissent in Kyllo points out that, given the Court's interpretation, Fourth Amendment protection seems to erode as soon as the technology attains "general public use." Seemingly, once a technology capable of invading privacy is widely used in society, government will also be free to use it. Therefore, the unresolved question now, despite both Katz and Kyllo, is what applications of biometrics against individuals--wherever they may be--will count as a search. The pressing constitutional privacy issue is that, one way or another, governments must acquire clearances equivalent to those that they must secure in the non-digital world.

One bright spot in the digital revolution, given the potential loss of Fourth Amendment protections, is that surveillance technologies are cheap, not just for governments, but for individuals as well. As technologies improve and prices decline, individuals can turn the electronic eyes right back on the government, exposing abuses of individual rights. The Witness Project, for instance, documents human rights abuses worldwide, a perfect example.

Private voluntary databases

Another use of biometrics is private, voluntary databases for particular applications. In them, individuals are identified by such means as retina scans and fingerprints, and matched with their previously created record in the database. Unlike databases of criminals, to which everyone must demonstrate they do not belong, these are databases of members, wherein one must show one does belong. The manager of the private database is saying, in effect, "You may enter my privately owned building, airplane, factory, laboratory, campus, office park, parking garage, neighborhood, house, and so forth, but only if I know who you are."

Members-only databases are common and exist where security clearances are needed for entry to sensitive areas. Computer scientist Dorothy Denning points to how such technologies are more secure than password-type security clearances since they aren't dependent upon secrecy--rather, they depend upon "liveness." These technologies can make it hard for malicious individuals to impersonate another person. They can even assure that only the appropriate, living, breathing, certified pilot commands an aircraft.

Clearly, the encroachment of biometrics into society will raise important social issues. Businesses will have to tread carefully regarding what level of surveillance is consistent with customer and employee preferences. Such uses of biometrics will be regulated by market forces and evolving social norms, and they will continue to be fine-tuned by acceptance or resistance.

Fundamentally, though, biometrics is about increasing convenience and service more than invading privacy. People have alternatives to dealing with parties that snoop too much:

Interestingly, however, the marketplace enters the biometric age with individuals seemingly more accepting of modern surveillance technology than is commonly acknowledged. Individuals already use such tools as "nannyware" and "adulteryware" to find out what their kids and spouses, respectively, are up to online. Tracking of patrons in Las Vegas casinos is a given. Yearly pass-holders at Disney World's Magic Kingdom can attain clearance by fingerprint. Visa International is exploring biometrics to combat credit card fraud, and ATMs that recognize faces are imminent. A pilot project in a Kroger supermarket in Texas allows shoppers to leave purses, wallets, and IDs at home and pay with a fingerprint. Biometrics can make medical information from pacemakers, artificial joints, and pumps more readily available to medical professionals. When used in cell phones and personal digital assistants, biometric identification chips will better enable digital signatures and mobile commerce.

People, especially the young, will likely adapt to tomorrow's cashless, keyless, walletless society very easily. It is not hard to envision the convergence of young people today who think nothing of multiple body piercings with the mobile-computer wearing "not-quite-cyborgs" of MIT and Xybemaut Corporation. They and their progeny undoubtedly will have fewer qualms about merging man and machine than many currently do. There is already a family in Florida with implanted biometric chips. In each case, the private sector must generate its own information, for purposes limited by the market's twin engines of consumer choice and consumer rejection.

The proliferation of biometric technologies raises new and challenging questions in a society that enshrines privacy and liberty. A framework is needed by which we may resolve issues pertaining to proper and legitimate deployment.

Most fundamentally, governments should not force citizens to submit to biometric identification, which rules out national ID cards. Governments also must recognize that Fourth Amendment protections will apply in the biometric age, which rules out using public surveillance systems to identify and track individuals deliberately without the authority of a court order. Finally, private-sector biometrics that show enormous promise must face either the approval or wrath of the public in order to be properly "regulated"--and that process is undercut when the lines between public and private databases are blurred.

Clyde Wayne Crews Jr., director of technology studies, Cato Institute, Washington, D.C., is co-editor of Copy Fights: The Future of Intellectual Property in the Information Age.
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Author:Crews, Clyde Wayne, S. Jr.
Publication:USA Today (Magazine)
Geographic Code:1USA
Date:Jul 1, 2003
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