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Copyright (c) 1997 The University of Pittsburgh Law Review

University of Pittsburgh Law Review

Fall, 1997

59 U. Pitt. L. Rev. 97

LENGTH: 29115 words

ARTICLE: BIOMETRIC SCANNING, LAW & POLICY: IDENTIFYING THE CONCERNS--DRAFTING THE BIOMETRIC BLUEPRINT

NAME: John D. Woodward *

BIO:

* Operations Officer, Directorate of Operations, Central Intelligence Agency, 1985-1997; J.D., Georgetown University Law Center, 1998; M.S., London School of Economics, University of London, 1983; B.S., Wharton School, University of Pennsylvania, 1981. I thank Dr. Arthur S. DiDio, M.D., Professor Steven Goldberg, Professor Julie O'Sullivan and Shirley Cassin Woodward for their helpful comments and support. I also thank Dr. Joe Campbell, the Chair of the Biometric Consortium, Dave Harper of the International Computer Security Association, Ben Miller, the Chairman of CardTech/SecurTech and William Rogers, the editor of Biometric Digest, for kindly inviting me to speak at conferences which their organizations hosted; I benefited greatly from the participants' insightful comments. Erik Bowman, Gary Roethenbaugh and Dr. Jim Wayman patiently answered my many questions.

SUMMARY:

  ... While Cruise, according to the Hollywood script, coolly outwits cutting-edge biometric technologies like eye scanning, voice recognition and computerized finger imaging, the reality is that biometrics is rapidly emerging as a fast, foolproof means of personal recognition. ... After an explanation of biometrics and biometric applications in parts II and III, this paper, in part IV, will examine legal issues from the standpoint of possible constitutional concerns associated with the government's use of biometric technology. ... "High Government" use refers to the use of biometric technology by the military and national security community, law enforcement agencies and prison management. ... Recognizing a high-level privacy interest in the medical data collected, courts will likely focus on how the government agency handles dissemination of the data it has collected and what kinds of safeguards are in place to prevent inadvertent disclosure, given the strong interest in keeping personal medical information strictly confidential. ... The court did, however, restrict access to the fingerprint database to legitimate Department of Motor Vehicle driving matters in California. ... For example, privacy rights advocate Robert Ellis Smith contends that " "in most cases, biometric technology is impersonal and it's overkill.' ... Various biometric technologies, including hand geometry and finger imaging, are securing access and verifying identity of prisoners, staff and visitors across the U.S. ...  

TEXT:

 [*97] 

Technology is fast. The law . . . is slow. n1

A government official may be upset when a memo runs into problems with a policy analyst. This official's situation is much worse, however, when the memo runs into problems with the general counsel. n2

I. Introduction

Mission: Impossible, the hot movie hit of the summer of 1996, showcases Tom Cruise in a fast-paced espionage thriller. n3 Like many good spy flicks, the film features the latest in high tech innovations, in this particular case, biometrics. n4 While Cruise, according to the Hollywood script, coolly outwits cutting-edge biometric technologies like eye scanning, voice recognition and computerized finger imaging, n5 the reality is that biometrics is rapidly emerging as a fast, foolproof means of personal recognition. In fact, both the governmental and private sectors are making extensive use of biometrics to provide better service to the  [*98]  public. n6

For government agencies in the United States constantly encouraged to "do more with less," biometric applications can save tax dollars and make programs operate more efficiently. Government agencies are reporting impressive biometric success stories. For example, the Los Angeles County Department of Public Social Services reported that finger imaging of welfare recipients in a pilot program reduced fraud by over $ 14 million and resulted in the termination of over 3,000 previously-approved entitlement cases over a three year period. n7 The savings more than paid for the $ 9.6 million cost of implementing biometric technology. n8 Recognizing this and similar positive applications, the U.S. Secret Service and the General Accounting Office (GAO) gave biometrics a qualified endorsement as a viable means to deter fraud in government entitlements distributed electronically, known as electronic benefits transfer (EBT). n9

Understanding biometrics is essential for elected officials charged with authorizing how these new technologies will be used, and for government managers responsible for implementing biometrics into comprehensive, integrated programs. Moreover, an understanding of biometrics is important for the legal, academic and policy advocacy communities so that they can meaningfully participate in the public debate related to biometrics. This understanding, however, must be more broad-based than just technical, administrative and security concerns. As the technology becomes more economically viable and technically perfected, biometric  [*99]  scanning could refocus the way Americans look at the brave new world of personal information. We will soon be eyeball to eyeball with controversial legal issues implicating constitutional safeguards as well as larger public policy concerns. Accordingly, before integrating biometric scanning into government programs, these legal and policy concerns must be addressed to help guarantee political support and public acceptance of biometrics.

After an explanation of biometrics and biometric applications in parts II and III, this paper, in part IV, will examine legal issues from the standpoint of possible constitutional concerns associated with the government's use of biometric technology. Accordingly, part IV focuses primarily on physical privacy and informational privacy concerns. These concerns are explored through the relevant case law dealing with the impact of technology on privacy. Part V briefly examines the major problems government agencies will face, in terms of the "regulatory gap," when they seek to incorporate the use of biometrics into their programs. The paper concludes with a modest biometric blueprint which provides a framework to ensure that legal and policy concerns mesh productively with technical, security and administrative factors. Existing biometric technologies are then examined in terms of which ones offer the most promise for this blueprint in actual practice.

II. What is Biometrics?

A. Biometrics and Biometric Scanning Defined

While the word "biometrics" sounds very new and "high tech," it stands for a very old and simple concept--human recognition. n10 In technical terms, biometrics is the automated technique of measuring a physical characteristic or personal trait of an individual and comparing that characteristic or trait to a database for purposes of recognizing that individual. n11

Biometrics uses physical characteristics and personal traits, which include: n12  [*100] 

[SEE TABLE IN ORIGINAL]

 

Of these, only three of the physical characteristics and personal traits currently used for biometrics are considered truly consistent and unique: the retina, the iris and fingerprints. n13 As such, these three physical characteristics provide the greatest reliability and accuracy for biometrics. n14

Biometric scanning is the process whereby biometric measurements are collected and integrated into a computer system, which can then be used to automatically recognize a person. n15 Biometric scanning is used for two major purposes: identification and verification. Identification is defined as the ability to identify a person from among all those enrolled, i.e., all those whose biometric measurements have been collected in the database. n16 Identification seeks to answer the question: "Do I know who you are?" and involves a one-compared-to-many match (or what is referred to as a "cold search"). n17

Biometric scanning is also used for verification, which involves the authentication of a person's claimed identity from his previously enrolled pattern. n18 Verification seeks to answer the question: "Are you who you claim to be?" and involves a one-to-one match. n19

B. Advantages of a Biometric Scanning System

Biometric scanning can be used for almost any situation calling for a quick, correct answer to the question: "Who are you?" n20 The unique advantage of biometrics is that it bases identification on an intrinsic as-  [*101]  pect of a human being. n21 Recognition systems that are based on something other than an intrinsic aspect of a human being are not always secure. n22 For example, keys, badges, tokens and access cards (or things that you physically possess) can be lost, duplicated, stolen or forgotten at home. Passwords, secret codes and personal identification numbers (PINs) (or things you must know) can be easily forgotten, compromised, shared, or observed. n23 Biometrics, on the other hand, are not susceptible to these particular problems. Depending on the exact use for which the technology is envisioned, an ideal biometric technology would generally include a system based on:

. A unique biometric characteristic;

. Non-intrusive data collection;

No or minimal contact between the person being scanned and the equipment doing the scanning;

. An automated system, i.e., no human decisionmaker in the decision loop;

. Very high accuracy; n24 and

. High speed. n25

In sum, a good biometric system is fast, accurate, user-friendly and lowcost. n26

In terms of operability, desirable biometric characteristics generally include:

. Precision of the measurement(s);

. Speed (Throughput Rate);

. Public acceptability;

. Reliability;  [*102] 

. Resistance to counterfeiting;

. Acceptable storage requirements; and

. Fast enrollment time. n27

According to Dr. Joseph P. Campbell, Jr., a National Security Agency researcher and the Chairman of the U.S. Government's Biometric Consortium, which has over 200 members from government, academia and the private sector, no technology has emerged as the "'perfect biometric,' suitable for any application." n28 While a detailed examination of the various biometric technologies is beyond the scope of this paper, numerous technologies are currently being perfected and many biometrics are fully deployed and in use. These biometric technologies can be divided into three general categories: High Biometrics, Lesser Biometrics and Esoteric Biometrics. n29

C. High Biometrics

The first category, "High Biometrics," refers to biometric technologies distinguished by high accuracy and which currently have functional working systems fully deployed. At present, high biometrics are based on the only three biometric features that are considered truly consistent and unique: the retina, the iris and fingerprints. n30 These biometrics include the following:

1. Retinal Scanning

Retinal scanning involves an electronic scan of the retina--the in-  [*103]  nermost layer of the wall of the eyeball. n31 By emitting a beam of incandescent light that bounces off the person's retina and returns to the scanner, a retinal scanning system quickly maps the eye's blood vessel pattern and records it into an easily retrievable digitized database. n32 The eye's natural reflective and absorption properties are used to map a specific portion of the retinal vascular structure. n33 This mapping is accomplished by a device n34 which uses a scan wheel/lens apparatus rotating at the rate of six complete rotations per second to collect a total of 700 data points in the retina during each rotation. n35 Once the data is collected, it is digitized and stored as a 96 byte template. n36 Retinal scanning relies on the unique characteristics of each person's retina as well as the fact that the retina generally remains fairly stable through life. n37 Disadvantages of retinal scanning include the need for fairly close physical contact with the scanning device, n38 the fact that trauma to the eye and certain diseases can change the retinal vascular structure, as well as concerns about public acceptance. n39

2. Iris Recognition

Iris recognition uses the iris, the colored circle that surrounds the pupil, as the physical characteristic to be measured. n40 The iris is chock full of randomly distributed immutable structures, which means that, like snowflakes, no two irises are ever the same. n41 Moreover, the iris does not  [*104]  change over time. n42 Using standard video technology, its features can be quickly recorded from about nine inches away, thus obviating the need for invasive physical contact. n43 Software captures the identifying information from the iris and stores it in a 256 byte code. n44 Disadvantages of iris recognition include problems of user acceptance, the relative expense of the system as compared to other biometric technologies, n45 and the relatively memory intensive storage requirements. n46 Iris recognition stands out as perhaps the most "hygienic" of the biometric technologies in that no part of the user's body has to touch anything to operate the system. n47

3. Finger Imaging

Fingerprints have long been used as a means of recognition. n48 By the early twentieth century, on the heels of the establishment of the Henry system of classification, fingerprint identification was formally accepted by law enforcement agencies and became a standard in forensics. n49 Fingerprints' contemporary offspring, finger imaging, n50 involves physically placing a finger on a small optical scanner roughly similar to the glass plates seen on many supermarket checkout counters. n51 This "live" fingerprint is electronically read and converted into a unique byte code stored in a database which can then be compared to other finger images for identification purposes.  [*105] 

A major advantage of finger imaging is the long-time use of the fingerprint and its wide acceptance by the public and law enforcement communities as a reliable means of human recognition. n52 Comprehensive finger imaging systems are fully operational; for example, currently, Woolworth's supermarkets in Australia operate the world's largest time and attendance system featuring biometrics. n53 Finger imaging technology is used to monitor time and attendance for about 100,000 employees. n54 Disadvantages of finger imaging include the need for physical contact with the optical scanner, the possibility of poor quality images due to residue on the finger such as dirt and body oils (which can build up on the glass plate), as well as eroded fingerprints from scrapes, years of heavy labor, or mutilation. n55

D. Lesser Biometrics

The second category, "Lesser Biometrics," features reasonable accuracy with functional systems deployed. They are not based on truly unique physical characteristics. Examples include the following:

1. Hand Geometry

Hand geometry, "the granddaddy of biometrics by virtue of a 20year history of live applications," n56 takes a three dimensional record of the length, width and height of the hand and/or fingers. n57 The subject places her hand in an optical scanner, measurements are taken, and the results are converted into a less than ten byte code. n58 In effect, a digital map of the outline of a person's hand is created. n59 The system is non-invasive, and since the memory requirements are limited, hand geometry  [*106]  requires very little computer storage space. n60 It is also very userfriendly. n61 Hand geometry systems are currently deployed at over 8,000 locations, n62 including Walt Disney World in Orlando, which uses a version of hand geometry to verify customers who purchase yearly passes to prevent any illegal or inadvertent pass transfer. n63 Disadvantages include the lack of uniqueness of hand geometry as compared to other biometrics. n64 Also, an injury to the hand can cause the measurements to change, resulting in recognition problems. n65

2. Face Recognition

People recognize one another by looking at each other's faces. Face recognition is a noninvasive process where a portion of the subject's face is photographed and the resulting image is reduced to a digital code. n66 PC Week Labs, in its recent review of a face recognition biometric product, noted that it "affords nearly foolproof authentication; eliminates userrelated security issues such as forgotten passwords or token theft; is fast and easy to use; and provides an audit trail of all access attempts." n67

The main disadvantages of face recognition are similar to problems of photographs--people who look alike can fool the scanners. n68 Also, people can significantly alter their appearance, and facial hair may be able to fool the device. n69 Finally, some systems have difficulty maintaining high levels of performance as the database grows in size. n70

3. Voice Recognition

One's voice, like other biometrics, cannot be forgotten or mis-  [*107]  placed. n71 Voice recognition involves taking the acoustic signal of a person's voice and converting it to a unique digital code which can then be stored in a template. n72 In practical terms, the user would first enroll in the voice recognition system by speaking an agreed-upon phrase. n73 For future recognition, she would speak the exact same phrase, the signal would be analyzed by the voice recognition system and she would either be accepted, rejected or, if there were insufficient confidence as to her signal, the system could request additional information from her. n74 Voice recognition systems are extremely well-suited for verifying user access over a telephone. For example, Chase Manhattan Bank has begun using voice verification systems to identify customers seeking account access by telephone. n75 Disadvantages of this biometric are that, not only is a fairly large byte code required, but people's voices can change (for example, when they are sick or in extreme emotional states), phrases can be misspoken, and background noises can interfere with the system. n76

4. Signature Recognition

Signature recognition, or signature dynamics, uses computer technology to record components of an individual's signature such as pen/stylus speed, pressure, direction in signature and related characteristics. n77 "The key . . . is to differentiate between the parts of the signature that are habitual and those that vary with almost every signing." n78 Recently, many large retailers, including Home Depot, have examined signature recognition systems as a way to reduce fraud. n79 The idea is that to the extent a person's handwriting is unique, an on-line writing device at the checkout line could instantly compare the customer's signature to one in a database. The major drawbacks are problems of long-term reliability, the lack of accuracy and cost. n80  [*108] 

E. Esoteric Biometrics

The third category, "Esoteric Biometrics," includes biometrics still in the early experimental and developmental stages. Examples include vein measurement and the analysis of the chemical composition of body odor. n81 In the area of vein measurement, the European Union, given its official funding of this technology, seems to be encouraging this biometric. n82 Vein measurement generally focuses on blood vessels on the back of the hand. n83 An infrared light combined with a special camera capture an image of the blood vessels, in the form of tree patterns, which is converted into data and stored in a template. n84 Vein patterns have some advantages. First, vein patterns are large robust internal patterns. Second, the procedure does not implicate the criminal connotations associated with the taking of fingerprints. Third, the patterns are not easily damaged by weekend gardening or bricklaying. n85

The procedure has not yet won full mainstream acceptance. According to Dr. L. John A. DiDio, a leading anatomist and professor emeritus of the Medical College of Ohio, "there has not yet been a definitive study proving the reliability for precise identification of the dorsal patterns of the human hand." n86 However, the idea of vein measurement as a unique identifier is not new; several papers were published on the subject in the early part of the twentieth century, n87 but interest waned as fingerprints become universally accepted for identification purposes. n88 For many practical applications, vein measurement holds promise.

Finally, while body odors as a biometric are unproven, we know that certain breeds of dogs excel at using their sense of smell to track humans. At least one company is working on a device to identify people  [*109]  based on body odors. n89 The scientific basis of the work is that the chemical composition of odors can be identified using special sensors. n90 The University of Leeds has pioneered similar research that has application to drug and bomb detection technologies. n91

III. What are the Applications of Biometrics?

While initially encouraged by the U.S. government for its national security uses, biometric scanning can be considered for any situation calling for a quick, correct answer to the question: "Who are you?" n92 Applications are vast and expanding; as one industry expert noted: "The influence of biometric technology has spread to all continents on the globe." n93 In concrete terms, this influence translates into about $ 1 billion worth of computer systems that include biometrics-based identification devices expected to be installed worldwide during 1997. n94 The biometric market, conservatively valued at over $ 16 million in 1996, is projected to grow to $ 50-$ 100 million by 1999. n95 Accordingly, biometric scanning is likely to have a substantial impact on the way we interact and conduct our affairs in the foreseeable future. The following discussion will consider the various ways in which biometric scanning could touch our lives.

A. "High Government" Use

"High Government" use refers to the use of biometric technology by the military and national security community, law enforcement agencies and prison management. One interesting example is the use of eye scanning behind bars--in American prisons. n96 In March 1990, the Cook County (Illinois) Sheriff's Department began using retinal scanning in the form of Eye-Dent, a device that scans the retina. n97 Every prisoner is re-  [*110]  tinally scanned. n98 The captured information is then used to identify and keep track of inmates in Sheriff Michael Sheahan's charge. n99 Upwards of 300 prisoners are scanned daily, and the Sheriff's database includes more than 300,000 retinal patterns. n100 Retinal scanning makes it much tougher for a suspect to masquerade under a false identity. n101 It also saves time and money: man-hours spent identifying a suspect are reduced to about one minute per search, which could mean substantial savings if multiplied over the current U.S. prison population of over one million inmates. n102

B. "Lesser Government" Use

"Lesser Government" use includes the use of biometrics in applications that have the potential to touch everyone's life. Consider, for example, biometric scanning to register voters, n103 reduce fraud in entitlement programs, n104 increase the efficiency and effectiveness of immigration n105 and border control checks, n106 as well as "everyday" licensing require-  [*111]  ments for driving a vehicle, n107 employment, n108 owning a weapon, purchasing controlled substances, n109 and accessing buildings and computer systems. n110 In addition, biometrics could easily be incorporated into national identity card programs. n111

The United States Immigration and Naturalization Service (INS), confronted with a two-fold increase in passenger volume in international air travel over the past decade, along with the urgent need to keep terrorists, criminals and illegal aliens out of the U.S., has been experimenting with an automated inspection system using biometric technologies at select Ports of Entry since 1993. n112 The INS goal is to remove the law-abiding, frequent traveler from the inspection lines and allow that low-risk person to be inspected and cleared by verifying his identity with a biometrics-based system. n113 This method allows INS to focus its efforts on potential terrorists and criminals, thus ensuring that INS resources are better utilized.  [*112] 

INS currently has four biometric projects under way at Ports of Entry: INSPASS (Airport); INSPASS (Land); PORTPASS (Dedicated Commuter Lane); and PORTPASS (Automated Permit Port). n114 The INSPASS programs feature hand geometry biometrics, although INS, according to unofficial word, is thinking about concentrating on finger imaging for future use. n115 INSPASS sites are currently operative at airports in Newark, New York City's JFK, Toronto and Vancouver; systems are set to go on line at Miami, Chicago, Los Angeles and San Francisco in the near future. n116 Almost 80,000 travelers have enrolled in the program. n117 PORTPASS uses voice verification technologies, since it is designed for use by passengers in motor vehicles passing through border crossings. n118 INS is also expanding IDENT, its finger imaging-based border control scheme presently deployed at seventy sites in the southwestern United States. n119 "INS['s] $ 17 million Automated Fingerprint Identification System (IDENT) led to the apprehension, identification and return of 996,000 illegal immigrants who entered the United States repeatedly, plus immediate identification of more than 14,700 criminal immigrants during fiscal 1996 alone." n120

Immigration authorities throughout the world, including those in Australia, Canada, Germany, Hong Kong, the Netherlands, Singapore and the United Kingdom are also developing automated systems, and experimenting with different biometrics such as fingerprints, hand geometry and face recognition. n121 Joint efforts are being made to develop an international standard for automated inspections to ensure compatibility. n122  [*113]  Without an accepted international standard, the "user-friendly" attraction of the system lessens. In this situation, an international traveler would need to carry multiple identifier cards, one for each country she hoped to enter, containing her digitized biometric code for the biometric system used by that country stored onto the card's magnetic strip.

C. "Private Sector and Commercial" Use

"Private Sector and Commercial" use includes verification systems for automated teller machines (ATMs), smart card and credit card transactions and electronic commerce; n123 private security systems for facility and room access; n124 personnel management systems such as time and attendance records; n125 computer access controls, background checks and encryption. n126

In 1995, Oki Electric Industry Limited (Oki), a leading vendor of ATMs, teamed up with two New Jersey companies, IriScan and Sensar, a subsidiary of the David Sarnoff Research Center, to integrate iris recognition technology into its ATMs in Japan. n127 England's Nationwide Bank is also testing iris recognition. n128 According to Donald R. Richards, IriScan's former Director of Program Development, the ATM card holder will first be "enrolled" at her local bank. n129 Instead of thinking up a password, the customer will look into a scanner which will video her iris pattern, instantly convert it to a 256 byte digitized code and store this code onto the magnetic strip of her ATM card. n130 The next time the customer needs fast cash, she simply inserts her card into an ATM, where a video camera installed in the ATM re-reads her iris pattern and matches it with the code on her card to grant her access to her account. n131 All of this will happen faster than she can ask her friends, "Should we have  [*114]  sushi or yakitori for lunch today?" n132

In October 1996, Oki unveiled IrisIdent, its iris recognition-based ATM system, in Tokyo where the system is being tested by a number of Japanese banks. n133 In the United States, fingerprints (or, to use the term of art, finger images) are also being used to control ATM access. n134 In Indiana, for example, the Purdue Employees Federal Credit Union has been enrolling finger images of customers since February 1997 to give them access to kiosks, or "virtual branches," that it plans to install at several Purdue University campus sites. n135

If biometric scanning, such as IrisIdent, proves technically successful and meets with consumer acceptance, then the world's financial community, concerned about growing problems of fraud, estimated to cost over $ 450 million in 1995, will take notice. n136 In Japan, for example, the cost of ATM fraud and unauthorized account access was estimated at 1.2 billion yen in 1995 alone. n137 The potential biometric scanning ATM market in the U.S. alone is enormous, with almost ten billion ATM transactions conducted in 1995. n138 Worldwide, credit card fraud is estimated at $ 2 billion per year, much of which the credit card industry believes will be eliminated by the use of biometrics. n139  [*115] 

IV. What are the Legal and Policy Implications of Biometric Scanning?

A. Legal

1. Medical Information Concerns

Biometric scanning, whether based on the iris, retina or finger image or other biometrics, may prompt a variety of legal and policy concerns. Specifically, privacy concerns may be implicated because in addition to the identification data captured, information about a person's health and medical history may also be incidentally obtained. For example, through an examination of the retina or iris, an expert can determine that a patient may be suffering from common afflictions like diabetes, arteriosclerosis and hypertension. n140 Furthermore, unique diseases of the iris and the retina can also be detected by a medical professional. n141 As Dr. F.P. Nasrallah, an Assistant Professor of Ophthalmology at George Washington University explains, "examination of both the iris and the retina provides important diagnostic clues about a person's health, the retina more so." n142 Nasrallah adds: "If I see certain lesions on the retina, I can become suspicious that the patient has AIDS, diabetes or high blood pressure for example." n143 Intravenous drug abuse can also be suspected from a retina exam. n144

While both the iris and retina contain medical information, it is by no means certain that biometric scanning of the iris or retina automatically implicates constitutional privacy concerns related to the disclosure of medical information. A key area of necessary inquiry is whether the computerized byte code taken of the iris or retina contains this medical information. If the byte code does, in fact, contain such information, it seems that such medical information could be extracted from the byte code in at least two ways. First, the actual byte code, in and of itself, could reveal information beyond identification information. Second, the byte code could, by technical means, be reversed engineered to reveal the iris or retina pattern which could then be examined for medical information.  [*116] 

Recent scientific research suggests that finger imaging might also disclose sensitive medical information about a person. n145 For example, Dr. Marvin M. Schuster, director of the division of digestive diseases at Johns Hopkins Bayview Medical Center, has discovered a "mysterious relationship" between an uncommon fingerprint pattern, known as a digital arch, and a medical disorder called chronic, intestinal pseudo-obstruction (CIP) which affects 50,000 people nationwide. n146

Additionally, Dr. Harold Chen, in his work on dermatoglyphics, or the study of the patterns of the ridges of the skin on parts of the hands and feet, notes that "certain chromosomal disorders are known to be associated with characteristic dermatoglyphic abnormalities." n147 He specifically cites Down syndrome, Turner syndrome and Klinefelter syndrome as chromosomal disorders which cause unusual fingerprint patterns in a person. n148 Certain non-chromosomal disorders, such as CIP (described above), leukemia, breast cancer and Rubella syndrome, have also been implicated by certain unusual fingerprint patterns. n149

Although their findings remain controversial within the scientific and gay communities, several researchers report a link between fingerprints and homosexuality. n150 Psychologists at the University of Western Ontario report that homosexual males are more likely than their heterosexual counterparts to show asymmetry in their fingerprints. n151 While this research is far from conclusive, n152 the availability of such information with its possible links to medical information and lifestyle preferences raises concern about the need to protect the privacy of the information.  [*117] 

Interestingly, in its report on the use of biometrics to deter fraud in the nationwide EBT program, the GAO raised no objections about the possible capture of medical data from biometric scanning, although the U.S. Department of the Treasury expressed unspecified concern over how finger imaging "would impact on the dignity of the recipients" and called for more "testing and study." n153 From the perspective of the federal judiciary, however, this type of personal data implicates constitutional privacy concerns in that the federal courts have long recognized that "medical information . . . falls within one of the zones of privacy entitled to protection." n154

2. Privacy

a. Definitions, Background & History

The word "privacy" (like the word "biometrics") is nowhere to be found in the text of the Constitution. Perhaps the absence of a textual reference to privacy makes the legal community all the more fond of defining what privacy is and explaining what it should be. Privacy is different things to different people. n155 Ruth Gavison offers perhaps the extreme privacy model: "Privacy is a limitation of others' access to an individual . . . in perfect privacy no one has any information about X, no one pays any attention to X, and no one has physical access to X." n156 Privacy includes a control aspect--"control we have over information about ourselves," n157 "control over who can sense us," n158 "control over the intimacies of personal identity," n159 or as a federal appeals court has phrased it, "control over knowledge about oneself. But it is not simply control over the quantity of information abroad; there are modulations in the quality  [*118]  of knowledge as well." n160 Based on her survey of the extensive privacy literature, Professor Lillian R. Bevier concluded, "privacy is a chameleon-like word, used denotatively to designate a range of wildly disparate interests--from confidentiality of personal information to reproductive autonomy--and connatively to generate goodwill on behalf of whatever interest is being asserted in its name." n161

Before examining specific privacy concerns related to biometrics, a brief historical overview of privacy in America is necessary because the American concept of privacy has changed over the centuries as America has changed--reflecting the idiom that "law mirrors the society that creates it." n162 Prior to the birth of the nation, the American colonists essentially recognized a right of physical privacy centered in the home-where a person could be free from contact with others. n163 For example, as part of his famous defense against British-imposed general search warrants n164 in 1761, James Otis, a leading Boston attorney, said: "Now one of the most essential branches of English liberty, is the freedom of one's house. A man's house is his castle; and while he is quiet, he is as well guarded as a prince in his castle." n165 Otis' remarks explicitly acknowledge that this right to physical privacy was not unfettered; the colonist enjoyed his privacy right provided he was "quiet." n166

With the founding of the Republic, the Constitution, without making explicit reference to privacy, protected privacy interests. n167 The Bill of Rights contains these protections in the First Amendment rights of freedom of speech, press and association; n168 the Third Amendment prohibi-  [*119]  tion against the quartering of soldiers in one's home; n169 the Fourth Amendment right to be free from unreasonable searches and seizures; n170 the Fifth Amendment right against self-incrimination; n171 the Ninth Amendment's provision that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people;" n172 and the Tenth Amendment's provision that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." n173

Beyond these constitutional provisions, the state legislatures and the courts took additional measures to protect citizens' privacy interests from the intrusive forces of new technologies. An example from mid nineteenth century America demonstrates this point. When Samuel F.B. Morse tapped out "What hath God wrought!" in 1844, he not only brought about a profound technological change but a legal change as well. n174 The telegraph's extensive use as a means of communication soon led to privacy concerns as the unscrupulous perfected wiretapping to intercept telegraphic messages. n175 Reacting to this intrusion, several states, as early as the 1850s, passed statutes prohibiting unauthorized interception of telegraph communications and the cutting of telegraph lines. n176 However, original drafts of telegrams filed with clerks for dispatch, as well as the telegraph company's copies of the received messages, had to be produced for court trials and legislative investigations. n177 The courts balanced privacy interests by requiring that such requests had to be reasonable in scope and a specific description of the telegram sought for  [*120]  production had to be provided. n178 Later, special ciphers were developed to ensure privacy. n179

By the second half of the nineteenth century, academia and the judiciary focused more attention on privacy rights, moving beyond privacy of place to privacy of person. In 1879, Judge Thomas M. Cooley, in his treatise on torts, included "the right to be let alone" n180 as a class of tort rights, contending that "the right to one's person may be said to be a right of complete immunity." n181 Two years later, the Michigan Supreme Court granted relief to a mother because the male defendant had observed her giving birth in her home without her consent. n182 In doing so, the court stated: "The plaintiff had a legal right to privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it." n183

Echoing and popularizing Cooley's phrase, Warren and Brandeis, in their classic article, The Right to Privacy, n184 written over one hundred years ago, articulated their view of privacy as a "right to be let alone" n185 which would enable society to "achieve control of press invasions of privacy." n186 They enjoyed success in that this invasion of privacy tort received recognition at common law by the Georgia Supreme Court fifteen years later. n187 Brandeis, as a U.S. Supreme Court Justice, would later use  [*121]  the phrase in his famous dissent in Olmstead v. United States, n188 declaring that the Founding Fathers "conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men." n189 While privacy as the "right to be let alone" has a positive appeal and commendable simplicity for many Americans, the phrase has been criticized in that "legally, it offers no guidance at all. Coveting an indefinable right is one thing; enforcing it in a court of law is another." n190

What then is the constitutional right to privacy and how does it affect biometrics used in government programs? The roots of most modern privacy interests are found in the Due Process Clause of the Fourteenth Amendment. It provides that no State shall "deprive any person of life, liberty, or property, without due process of law." n191 For over one hundred years, these words have been interpreted in tandem by the Supreme Court to contain a substantive protection which "bars certain government actions regardless of the fairness of the procedures used to implement them." n192 The Court has emphasized that "there is a realm of personal liberty which the government may not enter." n193 This realm consists of rights which are "fundamental" or "implicit in the concept of ordered liberty" n194 or as a later Court would phrase it, "deeply rooted in this Nation's history and tradition." n195  [*122] 

In what specific areas is the government forbidden entry? In the hundred years since The Right to Privacy was written, the Supreme Court, in its consideration of privacy interests, has implicitly categorized privacy as taking three distinct forms. n196 These include:

(i) Physical privacy or freedom from contact with other people or monitoring agents. Physical privacy enjoys its greatest constitutional protection under the Fourth Amendment freedom from unreasonable governmental search and seizure. n197

(ii) Decisional privacy or the freedom of the individual to make private choices about the personal and intimate matters that affect her without undue government interference. n198 The Court has found that the individual is constitutionally protected in "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education." n199 In determining the commonality of these personal decisions and why they deserve constitutional protection, the Court, through Justice O'Connor's opinion in Casey, explained that:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. n200

(iii) Informational privacy or freedom of the individual to limit access to certain personal information about oneself, n201 or in the words of scholar Alan Westin, "the claim of individuals . . . to determine for themselves when, how, and to what extent information about them is communicated to others." n202  [*123] 

By requiring citizens to submit to biometrics for official purposes, individuals would be compelled to give physical identification information to the government for storage, use and dissemination in government databases. Such government-mandated use of biometrics therefore directly implicates physical and informational privacy concerns. To a lesser extent, decisional privacy concerns are also implicated. n203 In the following section, these physical privacy and informational privacy categories are examined in detail.

b. Physical Privacy or Fourth Amendment

At the outset, it should be noted that because most biometric scanning will result from private sector activities where the user voluntarily gives up information, constitutional privacy concerns will not usually be implicated. n204 As one constitutional law scholar has noted, "the Constitution, with the sole exception of the Thirteenth Amendment prohibiting slavery, regulates action by the government rather than the conduct of private individuals and groups." n205 Thus, federal courts will likely turn a blind eye; with respect to the conduct of private individuals, the Supreme Court has been reluctant to find a privacy right in personal information given voluntarily by an individual to private parties. n206  [*124] 

What happens when the government requires a citizen to be biometrically scanned? Is scanning then a "search" subject to Fourth Amendment protections? The Fourth Amendment to the United States Constitution, which governs searches and seizures conducted by government agents, provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." n207 To evaluate whether governmentmandated biometric scanning constitutes a search defined as an invasion of a person's reasonable expectations of privacy, n208 the judiciary will focus on two factors. First, the nature of the intrusion is examined. n209 Actual physical intrusions into the body, such as blood-drawing, n210 breathalyzer testing and urine analysis, n211 can constitute Fourth Amendment searches. Second, the scope of the intrusiveness is examined with attention paid to the "host of private medical facts" revealed during the search. n212

If biometric scanning is found to constitute a search, "the ultimate measure of the constitutionality of a governmental search is "reasonableness."' n213 To make this determination, a court must balance the "intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." n214 In the criminal context, a search is "reasonable" only if the police have probable cause or reasonable suspicion of criminal activity. n215

However, the vast majority of government-mandated biometric scanning searches will not be performed under the scope of criminal law. Most biometric scanning searches will be routine and noncriminal in nature, involving countless citizens such as driver's license applicants, public entitlement recipients, and many categories of workers, including child care providers, federal and state government employees, military personnel, school bus drivers, employees of national securities exchanges, taxi drivers, employees of bars, certain athletes and even attorneys, all of  [*125]  whom might have to be biometrically scanned as part of comprehensive government regulation. "Searches conducted without grounds for suspicion of particular individuals have been upheld [by the courts] in "certain limited circumstances.' " n216 In this context, a much more difficult question arises--what legal criteria should apply to routine, non-criminal governmental "searches"?

In such situations, the judiciary will likely apply its administrative search doctrine. n217 In balancing government interests against the intrusion on an individual's privacy interest, this doctrine seeks to ensure that the government agents conducting the searches avoid arbitrary treatment of the citizens being searched. n218 Moreover, the government does not have to use the least intrusive search procedures. n219 In the biometric scanning context, the Court will consider factors similar to those in Vernonia School District 47J v. Acton n220 --"the nature of the privacy interest," n221 "the character of the intrusion that is complained of," n222 "the information [the intrusion] discloses" n223 and "the nature and immediacy of the governmental concern." n224

Recognizing a high-level privacy interest in the medical data collected, courts will likely focus on how the government agency handles dissemination of the data it has collected and what kinds of safeguards are in place to prevent inadvertent disclosure, given the strong interest in keeping personal medical information strictly confidential. The courts will also need to consider whether the gathering of this identification information is a mere pretext to help law enforcement gain evidence of criminal violations. n225 Government officials are not permitted to use an administrative search to investigate criminal activity. n226 If the purpose of the search is to uncover evidence of criminal conduct, government offi-  [*126]  cials must obtain a valid search warrant. n227

What would happen, for example, if a state public assistance agency required all welfare recipients to biometrically scan-in and then routinely compared this identification information with law enforcement databases for outstanding arrest warrants? The question posed is not a pure hypothetical. For example, in 1995, the Pennsylvania General Assembly passed welfare reform legislation authorizing the Pennsylvania Department of Public Welfare (DPW) to establish a biometrics-based pilot program known as the Assistance Recipient Identification Program (ARIP). n228 Among its legislatively-mandated goals, ARIP will serve "to eliminate duplication of assistance to welfare recipients, to deter fraud and to assist law enforcement officials in their duties." n229 The legislation authorizes DPW to use finger imaging, digitized photography and signature imaging of welfare recipients for storage, use and dissemination in an integrated DPW database, known as the Pennsylvania Automated Recipient Identification System (PARIS). n230 Access to the ARIP system is provided, by statute, to the DPW, the Pennsylvania State Police, and the Pennsylvania Board of Probate and Parole, as well as to local and county law enforcement authorities in Pennsylvania. n231 This legislativelymandated access is explained in part by the requirement that the DPW must verify that welfare recipients are not wanted by the police on out-  [*127]  standing arrest warrants. n232 Moreover, the DPW is mandated to enter into agreements with neighboring states to implement compatible database identification systems to include computer matching. n233

In terms of the general cross-sharing procedure for state welfare agencies, many states already have fraud-related data exchange agreements in place with their neighbors. n234 Cross-state matches of demographic data are conducted on a periodic and ongoing basis. n235 These existing agreements cover the exchange of demographic or "other" data. n236 As a result, no new or modified regulations or agreements are required for the exchange of biometric identification data. n237 Some state welfare agencies, like Connecticut's for example, do not routinely share state welfare agency data with law enforcement agencies. Connecticut and New Jersey are among the very first states to exchange biometric identification information to cross match for purposes of welfare eligibility. n238 Their initial biometrics-based cross match yielded twenty-five candidates. n239

With regard to cross-sharing of biometric identifiers and what use is made of this identification information, the Court's warning in Skinner v. Railway Labor Executives Association n240 might be worth heeding: "We leave for another day the question whether routine use in criminal prosecutions of evidence obtained pursuant to the administrative scheme would give rise to an inference of pretext, or otherwise impugn the administrative nature of the . . . program." n241  [*128] 

c. Informational Privacy

The Supreme Court's decision in Whalen v. Roe n242 "began the process of identifying the elements of an American constitutional right of informational privacy." n243 From a close study of this case, we can thus predict the federal judiciary's likely approach to constitutional privacy issues raised by biometric scanning used to create comprehensive, governmentsponsored databases. n244 Decided twenty years ago, Whalen involved the constitutional question of whether the State of New York could record, in a centralized computer database, "the names and addresses of all persons who have obtained, pursuant to a doctor's prescription, certain drugs." n245 While technology has changed greatly since 1977, the legal reasoning in Whalen is perhaps timeless, particularly for biometrics. Accordingly, the facts of the case (to include the constitutional concerns implicated), the procedural history, the holding, and the judicial reasoning deserve detailed examination.

Facts: In 1970, the New York state legislature, disturbed about the growing drug problem, established a commission to evaluate the state's drug control laws. n246 To correct perceived deficiencies in these state laws, the commission, after study, drafted legislation, as part of the New York Public Health Law, which required that "all prescriptions for Schedule II drugs" had to be prepared by the physician on an official state-provided form. n247 The completed form identified:  [*129] 

. the prescribing physician;

. the dispensing pharmacy;

. the prescribed drug and prescribed dosage; and,

. the name, address and age of the patient. n248

The statute required that a copy of the completed form be forwarded to the New York State Department of Health in Albany. n249 Albany received about 100,000 Schedule II prescription forms each month. n250 There the government agency "recorded [the information] on magnetic tapes for processing by a computer." n251 Based on his study of other states' reporting systems, the commission's chairman found that this comprehensive database would serve two purposes: it would be a "useful adjunct to the proper identification of culpable professional and unscrupulous drug abusers" and it would enable the authorities to have a "reliable statistical indication of the pattern of [the state's] drug flow" to help stop the diversion of lawfully manufactured drugs into the illegal market. n252

Various parties consisting of patients, doctors and physicians' associations challenged this statute in the federal courts. The evidence offered before the district court, where the case was first heard, included testimony from:

. two parents who "were concerned that their children would be stigmatized [as drug addicts] by the State's central filing system;" n253

. three adult patients who "feared disclosure of their names" to unauthorized third parties; n254 and,

. four physicians who believed that the New York statute "entrenches on patients' privacy, and that each had observed a reaction of shock, fear and concern on the part of their patients." n255

Appellees thus advanced two related privacy categories for the Court's consideration: "the nondisclosure of private information" n256 or informa-  [*130]  tional privacy, and an individual's "interest in making important decisions independently" n257 or decisional privacy. n258

Procedural History: The district court judge dismissed the lawsuit for want of substantial federal question, n259 and the plaintiffs appealed. The Court of Appeals reversed the district court, holding that the question of whether constitutional privacy rights were implicated was a substantial one which justified convening a three judge panel. n260 On remand, a three-judge district court held that the New York statute, insofar as it requires reporting of drug prescription information to a state agency, was a constitutional violation of the right of privacy guaranteed by the Bill of Rights. n261 Moreover, the district court found that "the regulatory scheme . . . has a needlessly broad sweep." n262 The State of New York successfully appealed to the United States Supreme Court. n263

Holding: In his opinion for the Court, Justice John Paul Stevens, joined by the Chief Justice and five other justices, found that "neither the immediate nor the threatened impact of the [statute's] patientidentification requirements . . . on either the reputation or the independence of patients . . . is sufficient to constitute an invasion of any right or liberty protected by the Fourteenth Amendment." n264 With these words, the Supreme Court rejected the privacy claim. In sum, the nation's highest court ruled that a government's centralized, computerized database containing massive amounts of sensitive medical information passed constitutional muster.

Judicial Reasoning: What factors influenced the Court's reasoning? First, the court seemed impressed by the fact that the New York State Legislature had created a specially-appointed commission which held numerous hearings on and conducted a thorough study of the state's drug problem. n265 The commission consulted extensively with authorities in  [*131]  other states "where central reporting systems were being used effectively." n266 A commission empowered by the legislature had done its homework in an attempt to help solve the menacing problem of drugs. The Court concluded that the statute was "manifestly the product of an orderly and rational legislative decision." n267

In its analysis of the informational privacy concerns raised, the Court paid close attention to what specific steps the state agency had taken to prevent any unauthorized disclosures of information from the centralized database. In particular, the Court noted that:

. The forms and the records were kept in a physically secure facility;

. The computer system was secured by restricting the number of computer terminals that could access the database;

. Employee access to the database was strictly limited; and,

. There were criminal sanctions for unauthorized disclosure. n268

Citing a famous (and often-quoted) statement of Justice Brandeis, n269 the Court reinforced a basic principle of federalism by confirming that the states "have broad latitude in experimenting with possible solutions to problems of vital local concern." n270 Arguably, the New York statute had not had much of an impact on the drug problem; twenty months after its enactment, examination of the database led to only two investigations involving illegal use of drugs. n271 As a kind of political process check, the Court explained that the state legislature, which gave this patient identification requirement its legal life, can also sound its death knell if it turns out to be an "unwise experiment." n272

Taking a somewhat practical approach to the way personal information is used in the contemporary age, the Court accepted the view that  [*132]  disclosure of such medical information to various government agencies and private sector organizations, like insurance companies, is "often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community does not automatically amount to an impermissible invasion of privacy." n273

In addressing decisional privacy issues, the Court acknowledged genuine concern that the very existence of the database will disturb some people so greatly that they will refuse to go to the doctor to get necessary medication. n274 However, given the large number of prescriptions processed at Albany, the Court concluded that the "statute did not deprive the public of access to the legal drugs." n275

The Court's opinion concluded with a cautionary note that still echoes loudly twenty years later:

We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. . . . The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. n276

The New York statute and its related implementation showed "a proper concern with, and protection of, the individual's interest in privacy." n277 Limiting the effect of its decision, the Court, however, reserved for another day consideration of legal questions which could arise from unauthorized disclosures of information from a government database "by a system that did not contain comparable security provisions." n278

In his concurring opinion, Justice Brennan, more so than his colleagues, expressed his concern over the potential erosion of informational privacy in the face of emerging technologies. n279 "The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such tech-  [*133]  nology." n280 While this specific "carefully designed program" n281 did not "amount to a deprivation of constitutionally protected privacy interests," n282 Justice Brennan suggested that there is a core right to informational privacy and stressed that future programs might be subjected to a compelling state interest test or strict scrutiny by the court of the government action. n283

Justice Stewart, in his concurrence, took issue with what he implicitly viewed as Justice Brennan's expansive privacy approach as well as with his brethren's view of constitutional privacy interests. According to Stewart, there is no general right of privacy in the Constitution. n284 Moreover, privacy concerns are matters left largely to the individual states. n285 Stewart further disavowed the notion that there is a constitutional informational privacy right and distinguished the cases Brennan cited in support of such a proposition: "Whatever the ratio decidendi of Griswold, it does not recognize a general interest in freedom from disclosure of private information." n286

With the exception of Justice Stewart, all of the justices adopted a prospective approach. By intensely focusing on the facts of Whalen, the Court left itself with ample judicial wiggle room to find that cutting edge computer systems combined with invasive new technologies might lack the necessary constitutional safeguards. A future Court might find an informational privacy right violated. In other words, the Court's cautionary note of Whalen could turn into a clear-sounding constitutional alarm bell in the future. n287  [*134] 

Perhaps Whalen is most disappointing in that it fails to deal with the central reality that as certain new technologies grow and progress, individual privacy interests can shrink and suffer. Justice Stevens describes this reality when he acknowledges how, in the modern age, medical information is disclosed to many entities, n288 but fails to raise the potential legal concern: As citizens literally become accustomed to giving more and more of themselves forever and ever to government and private sector databanks to fulfill their public sector duties and to participate in private sector transactions, their individual expectations of privacy will become reduced. n289 Focusing on the government sector, one scholar explains:

The fact that the government collects such great quantities of data gives rise to concern . . . that the data will be inappropriately disseminated, within government or to outsiders, or that it will be otherwise misused or abused. Recent advances in computer technology, which permit data to be manipulated, organized, compiled, transferred, distributed, and retrieved with hitherto unimaginable ease, exacerbate such concern. n290

At the risk of spewing "vague Orwellian angst," n291 Professor Clark presents perhaps the ultimate 1984 scenario:

Any high-integrity identifier [such as biometric scanning] represents a threat to civil liberties, because it represents the basis for a ubiquitous identification scheme, and such a scheme provides enormous power over the populace. All human behavior would become transparent to the state, and the scope for non-conformism and dissent would be muted to the point envisaged by the anti-Utopian novelists. n292

d. Similar Data Collection Cases Decided By the Courts

In deciding whether biometric scanning implicates constitutional privacy concerns, it is instructive to examine how the courts have decided other cases involving similar government-mandated identification requirements. In striking the balance between the individual and the community, expressed as "the demands of organized society," n293 the federal judiciary  [*135]  has decided a long line of cases related to government-required noncriminal fingerprinting of individuals. n294 Fingerprinting is often used as part of a statutory requirement for certain occupations; numerous challenges have been made on right to privacy grounds to such requirements, however, courts have consistently refused to uphold the challenge. n295 For example, a federal appeals court has upheld the constitutionality of a New York state statute mandating fingerprinting of all employees of member firms of national securities exchanges. n296 The court specifically rejected right to privacy contentions, noting that fingerprinting "is only a means of verifying the required information as to the existence or nonexistence of a prior criminal record . . . . The actual inconvenience is minor; the claimed indignity, nonexistent; detention, there is none; nor unlawful search; nor unlawful seizure." n297 Moreover, the court rejected the plaintiff's contention that a less intrusive means of identification should be provided as an alternate to the required fingerprinting on the grounds that there was no real invasion of privacy. n298 Federal courts, for example, have upheld the constitutionality of municipal ordinances requiring fingerprinting for certain employees of establishments serving liquor by the drink, n299 for all license applicants for massage parlors, n300 and for taxi drivers. n301

State courts have similarly upheld fingerprinting requirements in numerous contexts. n302 For example, the California Supreme Court upheld a provision of the California Vehicle Code which mandated that a fingerprint be submitted as part of the driver's license requirements. n303 The  [*136]  court held that the requirement was rationally related to highway safety in that the fingerprint was the "only assuredly accurate source of identification which remains immutable throughout an individual's lifetime" and could be used to identify those applicants who posed a danger to highway safety. n304 The court did, however, restrict access to the fingerprint database to legitimate Department of Motor Vehicle driving matters in California. n305 Citing the privacy interests involved, the court refused to allow dissemination of the fingerprint information to all interested parties. n306

In one of the first programs of its kind, the New York Department of Social Services (DSS) in 1994 established a demonstration program, known as the Automated Finger Imaging System (AFIS), authorizing a finger imaging requirement to identify welfare recipients in a two county area. n307 Similar to the Los Angeles County program, by capturing finger images of recipients, AFIS hopes to catch those who are defrauding the system. n308 Unlike the Pennsylvania Assistance Recipient Identification Program (ARIP), the finger images required by AFIS are to only be used to determine welfare eligibility; they are not routinely shared with law enforcement authorities for any purpose other than welfare fraud. n309 The AFIS program is presently being expanded throughout the state. n310 In a detailed examination of this initiative, one observer concluded that the AFIS program is successful, saves taxpayers dollars by reducing fraud, violates no constitutional safeguards and should be expanded to other jurisdictions: AFIS is a "simple, non-violative, cost-effective anti-fraud measure." n311 While agreeing that AFIS passes constitutional muster, the program has been questioned on cost/benefit grounds. n312 As one analysis  [*137]  noted: "If double dipping is a pervasive problem, then finger imaging is a rational response; if not, New York is spending money to fight a ghost and unnecessarily burdening the poor in the process." n313

In sum, federal and state courts have upheld government-mandated fingerprinting in numerous noncriminal situations. In these contexts, the courts have found that required fingerprinting, as an identification scheme, has been a legitimate use of the government's authority as long as it is reasonable, not arbitrary and rationally relates to a governmental objective. Moreover, the courts have not been willing to extend any kind of constitutionally based privacy protections to individuals who must comply with the identification requirement.

B. Policy

1. Regulatory Gap n314

Once a new technology becomes viable, the scientists and entrepreneurs who made the technology feasible are quickly joined (cynics would say replaced) by lawyers, politicians and bureaucrats as the technology becomes subject to governmental regulation, agency rule-making and public scrutiny.

Lawyers are extensively involved because, like it or not, they are the "agents for the peaceful resolution of social disputes in American society, and government agencies are a microcosm of that society." n315 It is no surprise that in many government agencies, lawyers are the "dominant professional group." n316 The importance of lawyers in the regulatory decisionmaking process is heightened by the legal principle that the federal courts have the authority to review decisions of administrative agencies. "Judicial review means that lawyers argue in court about agency policies, and it means further that when agencies begin their work they must plan for those court cases and thus they must rely heavily on lawyers." n317 Thus, the administrative agency's goal is to arrive at a politi-  [*138]  cally acceptable policy that can withstand judicial review; pure technical and security factors can be easily overshadowed by public perceptions of the new technology and any perceived legal concerns. Accordingly, this reality leads to what one administrative law expert calls the "regulatory gap," defined as "the cause of the screeching halt that often greets new ideas that fared well in the scientific world but not so well in the world of lawyers." n318

The federal government has the constitutional authority to regulate technology based on the broad construction given to the Commerce Clause n319 by the Supreme Court. n320 Regulation to protect the public health and safety has long been permitted. n321 Moreover, Congress has the power to spend for the general welfare, which includes the power to place conditions on the funds provided. n322 The state governments can also regulate technology as long as the state regulation does not conflict with federal law. n323 Under the Constitution, federal law is supreme. n324 Within this public policy process involving new technologies, "the government has ample constitutional power to regulate . . . . The Constitution empowers Congress to regulate technology, and Congress has not declined that invitation." n325

When dealing with public policy issues involving new technologies, Congress can follow two well-worn policy paths. It can take the direct route and pass legislation regulating the technology or it can delegate its authority to the appropriate federal administrative agencies. n326 The delegation route is the road most frequently traveled. n327 Since many administrative agencies inhabit this regulatory beltway, approaches to regulating  [*139]  technology will vary from agency to agency. n328 However, while administrative agencies may be equipped with expertise, experience and institutional memory, the administrative agency faces enormous challenges in designing, formulating and implementing government policy. n329 In addition, numerous competing groups (many well-organized and some politically influential) will want to press their claims in this public policy process. n330

In this regard, biometrics is not without its intense critics. n331 For example, privacy rights advocate Robert Ellis Smith contends that " "in most cases, biometric technology is impersonal and it's overkill.' " n332 Public policy advocates also oppose government-mandated use of the technology. As Simon Davies, director general of Privacy International explains: "The idea of placing the entire population's fingerprint into a registry carried with it enormous messages and the message was that you will submit to the authority of government." n333 Davies notes that it is no accident that biometric systems are being tried out most aggressively with welfare recipients; they are in no position to resist. n334 Marc Rotenberg, of the Electronic Privacy Information Center in Washington, D.C., believes that biometric methods raise "significant privacy concerns. . . . Take someone's fingerprint and you have the ability to determine if you have a match, for forensic purposes." n335 Fundamentalist Christian Pat Robertson, observing that "the Bible says the time is going to come when you cannot buy or sell except when a mark is placed on your hand or forehead," n336 expresses doubts about biometrics and notes how the technology is proceeding according to Scripture. n337 And at least one other religious group has complained that the hand geometry devices used by  [*140]  California were making "the mark of the beast" on enrollees' hands. n338

The "biometric regulatory gap," therefore, may be defined as the possibility that the best technically acceptable biometric application will not necessarily be embraced as an acceptable biometric application for government use from a legal and/or policy standpoint. Most importantly, given the various government agencies involved in evaluating biometric technologies and their many applications, there will likely not be a single dominant technology that emerges. Rather, biometric balkanization will take place; that is, multiple technologies will be deployed as discussed in greater detail below.

2. Lessons of Whalen v. Roe for the Blueprint

In many situations, government officials will be the principal architects of their agency's biometric blueprint--the comprehensive plan they will design, establish, implement and coordinate with other interested public and private sector actors to enable biometric technologies to be used effectively in a government program. Before drafting this biometric blueprint, these architects need to familiarize themselves with how the federal judiciary would likely approach such an issue. By doing so, the architects, together with general counsel and other interested parties, can hopefully draft a biometric blueprint that preempts major legal challenges. n339

a. Drafting the Biometric Blueprint

Government officials, as the architects, should draft their biometric blueprint drawing on the lessons of the Supreme Court's decision in Whalen. At the risk of stating the obvious, this blueprint should be drafted as part of a coordinated team effort. n340 In addition to considering the many technical, security and administrative issues, the architects must also identify and address legal and public policy concerns. As one Canadian biometric architect has noted, "just as it would be inconceivable to build a new system without any idea of the financial costs involved, it should be equally inconceivable to build a new system without any idea of the privacy costs involved, or the protections needed to minimize  [*141]  those costs." n341 From the outset, general counsel should be an integral part of this critical effort.

To satisfy the judiciary's concern over unauthorized disclosures, the centralized database should be governed by a "use limitation" principle meaning that restrictions should be placed on the use of the biometric identification information stored in the database. n342 When a government agency collects biometric identification information from an individual, it should do so with a primary purpose in mind. n343 For example, when a state Department of Motor Vehicles requires a biometric identifier from a licensed driver, it does so for the specific and proper purpose of confirming that individual's identity to help ensure traffic safety. n344 The use of the biometric identifier should ideally be limited to that primary purpose and should not, for example, be disclosed to private sector interests. n345 Such a safeguard is reasonable from the policy perspective of safeguarding privacy concerns, encouraging public confidence in the system, as well as maintaining system integrity by preventing ne'er-do-wells from compromising a biometric identifier for use in any kind of improper purpose. n346

At its most basic level, the database must be made physically secure. For example, any physical documents pertaining to the database should be kept in a secured area. n347 Depending on the amount, a safe, vault or building appropriately safeguarded is appropriate. Security personnel, alarm systems, video surveillance and other related security devices should be deployed as necessary. Most importantly, perhaps, biometrics should be used for access control purposes, thereby restricting unauthorized personnel from gaining access to the sensitive information in these databases. For example, instead of relying on easily compro-  [*142]  mised passwords and PINs, a biometric identifier would be scanned in at the computer workstation to determine database access. The use of a biometric log-on provides for greater accountability because an audit trail, or a precise record of who accesses what personal information within the database, is maintained. Thus, the database information can be restricted or compartmented based on the "need to know" principle.

The computerized network and system should also be made secure. n348 This task is made more difficult by the likelihood that such databases will become targets of hackers as well as criminal interests. To reduce this threat, agencies could engage in robust adversarial analysis or the technique of creatively attacking a system to learn its security and technical weaknesses. n349 Firewalls should be erected among the different databases.

Architects should explore the option of encrypting the biometric data to help further safeguard the information from disclosure. For example, agencies should require encryption of biometric data by promulgating the necessary regulations. Moreover, agencies could investigate the viability of adopting newly developed biometric technologies which use the individual's physical characteristics to construct a digital code for the individual without storing the actual physical characteristics in a database. n350 For example, using commercially-available finger image-based technology, a person's fingerprint is used during enrollment to create a personal identification number (PIN) for the individual. n351 This encoded PIN can only be decoded by a match with the appropriate finger pattern. n352 During verification, a computer search is done to ensure that the same PIN has not previously been entered into the system, thereby eliminating the fraud risk. n353 At the same time only the PIN, and not the actual fingerprint, is stored in the database. n354  [*143] 

Staff access should be limited to the "need to know" principle and updated personnel lists should be kept, indicating which employees enjoy which access levels. n355 Database requests themselves should be automatically logged to help prevent any employee from tampering with the system, and system access should be controlled by the use of biometrics.

Training, beyond the mere fundamentals, should be an agency priority. Agency employees should be instructed concerning their duties with respect to safeguarding the biometric information at their command. A senior official should be designated as the compliance officer to ensure that database information is protected. Whistleblower protection should be incorporated into the pertinent statute as well as the agency's regulations and convenient and anonymous reporting channels should be established to report violations. Perhaps most importantly, just as provided for in the New York statute in Whalen, n356 criminal sanctions should attach for unauthorized disclosures.

While beyond the limited scope of this paper, biometric architects also need to consider special provisions for those who are unable to comply with the biometric demands placed on them. For example, people who are physically disabled may not be able to use a biometrics-based system. Alternatives have to be made available for them. Along similar lines, procedural due process requirements will have to be honored. For example, in a government entitlements scenario, termination of entitlements should not be arbitrary. Rather, depending on the situation, appropriate pre-termination or post-termination procedures should be provided. For example, in the welfare entitlement setting, notice, an opportunity to confront adverse witnesses, an opportunity to present arguments and a decision made on the record should all be provided prior to the termination of benefits. n357

Given the legal and policy concerns discussed, this biometric blueprint has been offered as a starting point for government agencies adopting these dynamic technologies. Is there an ideal biometric that satisfies these concerns and neatly meshes with the blueprint? Lesser Biometrics seem favored if public acceptance and ease of implementation are  [*144]  weighed more heavily than technical, security and administrative factors. Lesser Biometrics are essentially noninvasive and nonthreatening; in short, they are the benign biometrics. For example, hand geometry, as the name implies, captures only measurements of the hand; even the most outspoken privacy advocates would be hard pressed to claim a right to privacy in ring size. Moreover, the system is relatively user-friendly.

For this reason, government lawyers, in their memos, might be inclined to embrace Lesser Biometrics. Unfortunately, the classic bureaucratic tension between lawyers and technologists will inevitably result. That is, the Lesser Biometrics will not always meet with the ready approval of bureaucrats in the policymaking chain, specifically the technical and security components of government agencies. Simply put, hand measurements are not as reliable as other biometrics in that they are not based on a truly consistent and unique physical characteristic. Similar technical and security concerns bedevil the other Lesser Biometrics.

As an Esoteric Biometric, vein measurement offers promise, but the current data seem far too incomplete. n358 Until this biometric becomes more fully developed and more widely deployed, its use as a viable form of identification remain more theoretical than real. Accordingly, Lesser Biometrics and Esoteric Biometrics will not be the immediate answer to resolving legal and policy concerns. n359

With the Higher Biometrics thus implicated as the most logical choice for immediate implementation, it is important to address whether a specific biometric technology will come to dominate the blueprint. At present, finger imaging has an early lead in terms of industry presence and it received an important seal of governmental approval when it was endorsed by the GAO. n360 The popularity of finger imaging is explained primarily by its accuracy, the long acceptance of fingerprinting by the public, extensive competition in the finger imaging market which leads to rapidly decreasing user costs, n361 and the influence of forces within the biometric community. n362 With regard to public acceptance of finger imag-  [*145]  ing, a recent survey of 1,000 adults revealed that 75 percent of those polled would be comfortable having a finger image of themselves made available to the government or the private sector for identification purposes. n363 This high acceptance is arguably underscored by over half of those surveyed saying they had been fingerprinted at some point in their lives. n364 Only twenty percent thought that fingerprinting "stigmatizes a person as a criminal." n365 Despite this early lead and apparent popularity, however, it is not clear that finger imaging will emerge as the biometrics of choice.

It is tempting to predict that finger imaging will dominate or that High Biometrics will come to monopolize the market because of their inherent accuracy. n366 However, this view overlooks one of the great strengths of the present biometric market: it offers many robust technologies which allow maximum choice for users. A more likely outcome is that biometric balkanization, or biometric diversity, will result: multiple biometrics will be deployed for multiple functions not only by various government agencies, but multiple biometrics will be deployed by the same government agency depending on the agency's mission. n367

Arguably, biometric balkanization, like its better known Eastern European namesake, can take on a sinister spin. Individuals are forced to give up various identifying "pieces" of themselves to countless government bureaucrats. The retina, the iris, the fingerprints, the voice, the signature, the hand, the vein and presumably even body odor are all extracted by the State, stored and replicated in countless databases.

Yet, biometric balkanization offers at least three key advantages for the biometric blueprint. First, biometric balkanization offers maximum flexibility to the government agency. To the extent it has experience and expertise, the government agency can tailor a specific biometric program to meet its own unique mission within its resource constraints. Depending on the situation and the degree of accuracy in identification required,  [*146]  the optimal biometric for that specific use can be selected. For example, the best biometric used to verify access to a government entitlements program might differ from the best biometric used by a state university to ferret out undergraduate examination fraud, which in turn might differ from the best biometric needed in a prison environment where hostile users will go to extreme lengths to foil identification efforts. Similarly, voice verification might be ideal for determining account access over the telephone, while signature dynamics might be better suited for tax authorities charged with monitoring tax returns.

Second, biometric balkanization might actually result in a synergy of the government agencies' interests and the individual's concerns. The government agencies basically want dependable, workable biometrics to achieve their primary purpose--verifying an individual's identity. The individual essentially wants the same thing, plus protection of private information. If different technologies are used for different situations, citizens will not face the necessity of reporting to the government's "biometric central" for enrollment. By allowing the agencies maximum choice of biometric technologies, the individual gains greater protection for private information.

Third, biometric balkanization could also lead to the safeguarding of biometric compartmentation, which would be achieved through the use of different biometric identifiers. For example, an iris pattern used for ATM access would be of little use to the Connecticut Department of Social Services, which uses finger imaging, just as the hand geometry pattern captured by the INS would be of little value to the IRS in examining signature dynamics.

From the privacy enhancement perspective, biometric balkanization is the equivalent of being issued multiple identification numbers, PINs or passwords, with the critical difference that biometric-based systems provide better security and greater convenience. Compartmentation, or the separation of personal information into small parts, is best achieved by biometric balkanization with a detailed biometric blueprint in place.

If biometric centralization and effective biometric standardization were to result, a cunning ne'er-do-well who obtains an individual's actual finger image would potentially be able to access that individual's personal information. With biometric centralization, the actual finger image would be the key that could unlock many compartments.

With biometric balkanization, biometric compartmentation results because only a small part of the individual's informational whole can be potentially accessed. For example, if a data thief purloins an individual's  [*147]  hand geometry pattern, she would only at most be able to unlock information compartments that use a hand geometry-based key.

On balance, however, the greater threat will likely not arise from the use of advanced technology, but rather from sloppiness in database management. The potential for a breach in database security increases as shortcuts are taken, budgets are slashed and trained personnel are few. Hence, the need for the comprehensive database protections described earlier is essential, particularly regarding criminal sanctions for unauthorized disclosures. n368

b. Using the Biometric Consortium

Within the executive branch of the federal government, there is an intergovernmental working group that is uniquely well-qualified to begin drafting the initial components of the biometric blueprint. Initiated by the National Security Agency (NSA), the Biometric Consortium (BC) serves as the U.S. Government focal point for "research, development, test, evaluation, and application of biometric-based" technology. n369 The BC reports through the Facilities Protection Committee to the National Security Policy Board to the Assistant to the President for National Security Affairs. n370 BC membership is currently comprised of representatives of six executive departments and each of the armed forces. n371 Among its responsibilities, the BC addresses legal and ethical issues surrounding biometrics as well as "advises and assists member agencies concerning the selection and application of biometric devices." n372 In addition to its regular meetings, the BC can also establish ad hoc bodies to address specific areas of need. n373

Recently the BC, through its executive agent, the NSA, took a positive step for assuring improved, independent biometric research by estab-  [*148]  lishing the National Biometric Test Center at San Jose State University. n374 The Center's mission statement reads in part:

The National Biometric Test Center will be a testing, learning and educational organization, created for the development, documentation, dissemination, promotion and teaching of scientifically/mathematically sound, "real-world" performance standards, testing protocols, and certification procedures for biometric devices, particularly those controlling access to U.S. government computers, computer and communications networks, and physical spaces. n375

The Center has been created under a "task order agreement," which means the Department of Defense (DoD), under whose jurisdiction NSA falls, will essentially determine the kind of tests to be conducted. n376 Initially, the assigned studies will likely be very project-specific tests of particular devices in very well-defined applications. n377 The first tests will involve fingerprinting systems. n378 While research into secondary information does not appear to be a high DoD priority at this early stage, the Center's staff is well aware of the legal, political and social issues raised by this technology. n379 Moreover, one of the advantages of a university environment is that the Center hopefully can, and should, take a broader, interdisciplinary approach.

To help guarantee this broader perspective, the BC should establish a Biometric Law and Policy Working Group, on an ad hoc basis, under its Ground Rules Committee, to study in greater detail the legal and policy implications of biometric technologies when used by government agencies. The Biometric Law and Policy Working Group should include legal scholars, government experts and technologists. One of the first priority issues of this Group should be to encourage the National Biometric Test Center and other organizations to address any medical information concerns raised by the use of biometrics. This priority issue is a case where "proving the negative" would help biometrics. If the Center were able to demonstrate that no medical concerns were implicated, public acceptance of the new technology would likely increase. At a minimum,  [*149]  the Group's studies should be presented in suitable public fora. n380

V. Conclusion

In determining if there is a constitutionally protected interest in forbidding the government to require that an individual provide biometricsbased identification information as part of a government program, this article has examined right to privacy issues in both the physical privacy and informational privacy contexts. In this regard, the prospect that a person's medical information might also be incidentally collected by a biometric technology has been noted as a possible concern. Furthermore, the Supreme Court's warning in Skinner--whether the use in criminal prosecutions of information gathered by an administrative agency would give rise to an inference of pretext, or otherwise call into question the administrative nature of the program n381 --has also been highlighted. Considerable attention should be focused on the Whalen decision for the lessons it provides for the architects of the agency's biometrics blueprint.

To withstand legal and policy challenges, the biometric architects, working closely with general counsel, should make certain that the database they design is secure and that all reasonable measures, including staff training, criminal sanctions and whistleblower protections, have been taken to prevent any unauthorized disclosures. While the future course of the industry is not clear, the phenomenon known as biometric balkanization will likely lead to greater choice for government agencies and greater protection for the individual. To address the legal and policy implications raised by biometric technologies, the Biometric Consortium should immediately establish a working group to encourage the National Biometric Test Center and other organizations to investigate medical information concerns related to biometrics.

Mindful of the regulatory gap, it is possible that the implementation of biometric applications in government programs might be delayed and that the technically best and most secure technology might not be the same as the most publicly and bureaucratically acceptable. While it is unclear which biometric technologies will eventually win out in the marketplace, it is certain that as biometrics becomes more commonly used for recognition purposes, special interest groups, national and state policy  [*150]  makers, administrative agencies and the courts all will begin to identify potential problem areas.

We are now eyeball to eyeball with a new, exciting technology that can make government programs more effective and efficient. Particularly in a period of limited governmental resources, biometrics makes it possible for taxpayers' dollars to be spent more productively. Now is not the time to blink. Government agencies can use biometrics in worthwhile ways and, at the same time, safeguard legitimate privacy concerns. Drafting a biometric blueprint should be an essential first step in this process. Without a biometric blueprint, we will soon be pointing fingers of blame.  [*151] 

Appendix I

A Selected Listing of Biometric Applications Presently Being Used by U.S. & State Government Agencies Central Intelligence Agency

The CIA developed a face recognition system currently used by several federal agencies. Much of the CIA's biometric work is classified; numerous other technologies are being evaluated.

Federal Aviation Administration

Evaluating various biometric technologies, including finger imaging for airport security applications.

Federal Bureau of Prisons

Various biometric technologies, including hand geometry and finger imaging, are securing access and verifying identity of prisoners, staff and visitors across the U.S.

U.S. Department of Commerce

Hand geometry to secure access to the DoC's Office of Computer Services.

U.S. Department of Defense--Various Components

Voice verification, hand geometry and finger imaging for access control. Much of DoD's biometric work is classified; numerous technologies are being evaluated.

U.S. Department of Energy

Hand geometry used for access control to sensitive portions of weapons laboratories. Much of DoE's biometric work is classified; numerous technologies are being evaluated.

U.S. Department of Justice, Drug Enforcement Administration

Hand geometry for access control.

U.S. Department of Justice, Federal Bureau of Investigation

Finger imaging for IAFIS (Integrated Automated Fingerprint Identification System). IAFIS would replace the present paper and ink based system with electronic finger images. NCIC 2000 (National Crime Information Center) will use various biometric technologies. Finger imaging is also used for access control.

U.S. Department of Justice, National Institute of Justice

Evaluating finger imaging and voice verification for smart gun technology. A smart gun incorporates, for example, biometric technology into the operating system of a firearm to restrict the firing of the weapon to authorized users.

U.S. Department of Justice, U.S. Immigration and Naturalization Service

Border Patrol evaluating facial imaging, voice verification, hand geometry and finger imaging technologies. The INSPASS system uses hand geometry for automation of frequent flyers at a number of U.S. airports. The IDENT system uses finger imaging to secure the southwest border of the U.S.  [*152]  U.S. Department of State

Evaluating various biometric technologies to aid in visa and passport processing.

U.S. Department of Treasury, Bureau of Printing and Engraving

Evaluating various biometric technologies to aid in currency control.

U.S. Department of Treasury, Internal Revenue Service

Evaluating signature verification for the electronic signing-off of income tax returns.

U.S. Department of Treasury, U.S. Secret Service

Evaluating hand geometry. Finger imaging to prevent fraud in the administration of pension programs.

California Department of Justice, SINS (Statewide Integrated Narcotics System)

Finger imaging to secure access to sensitive information about narcotics.

Department of Motor Vehicles at the State Level

Various states, including California, Colorado, Florida, New Jersey and Texas, are considering finger imaging for drivers licenses.

Entitlement Programs

A number of States, such as California, Connecticut, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, and Texas are using finger imaging to prevent welfare fraud. Hand geometry, retinal scanning and signature verification are being evaluated by other states.

Other Prisons

Retinal scanning, iris recognition, finger imaging and hand geometry for securing access and verifying identity of prisoners, staff and visitors across the U.S.

[SEE APPENDIX II IN ORIGINAL]

Legal Topics:

For related research and practice materials, see the following legal topics:

Healthcare LawBusiness Administration & OrganizationPatient ConfidentialityGeneral OverviewCriminal Law & ProcedureSearch & SeizureSearch WarrantsGeneral OverviewCommercial Law (UCC)Sales (Article 2)Subject MatterDefinitionsGeneral Overview

FOOTNOTES:

n1 Ellen Alderman & Caroline Kennedy, The Right to Privacy 326 (1995).

n2 Steven Goldberg, Culture Clash: Law and Science in America 5 (1994).

n3 See Mission: Impossible (Paramount 1996).

n4 See id. Hollywood is keen on biometrics; biometric technologies have been featured in GoldenEye; True Lies; Demolition Man; Star Trek II: The Wrath of Khan; and Never Say Never Again among others. See, e.g., Karla Harby, Optics: A Discerning Eye, Sci. Am., Apr. 1996, at 38; Jim Ritter, Eye Scans Help Sheriff Keep Suspects in Sight, Chi. Sun-Times, June 22, 1995, at 18.

n5 See Mission: Impossible (Paramount 1996).

n6 For examples of governmental use of biometrics, see infra Appendix I; see also Reports From the States and Provinces, in Biometrics Hum. Services User Group (Conn. Dep't of Soc. Services, Hartford, CT), Sept. 1997, at 1-6. For examples of private sector use of biometrics, see, for example, Rajiv Chandrasekaran, Brave New Whorl: ID Systems Using the Human Body Are Here, But Privacy Issues Persist, Wash. Post, Mar. 30, 1997, at H1; Ann Davis, The Body as Password, Wired, July 1997, at 132; Saul Hansell, Is This an Honest Face? Use of Recognition Technology Grows in Everyday Transactions, N.Y. Times, Aug. 20, 1997, at D1; Frank James, Body Scans Could Make ID Process Truly Personal, Chi. Trib., June 4, 1997, at 1; Mastercard to Test Biometric Finger Identification, Biometric Dig. (William Rogers & Assoc., St. Louis, Mo.), May 1996, at 1; H. Lee Murphy, Safety Playing Larger Role in Hotel Choice, Crains Chi. Bus., Oct. 30, 1995, at 6; Beth Stetenfeld, Credit Unions Look to Biometrics to Curb Fraud, Biometric Dig. (William Rogers & Assoc., St. Louis, Mo.), Aug. 1996, at 6-7; Survey: Market Trends, Biometric Tech. Today (SJB Services, England), Nov. 1996, at 11; John D. Woodward, Biometrics Offers Security--But Legal Worries, Too, Am. Banker, Aug. 23, 1996, at 11 [hereinafter Woodward, Biometrics Offers Security].

n7 See United States General Accounting Office, Electronic Benefits Transfer: Use of Biometrics to Deter Fraud in the Nationwide EBT Program, GAO/OSI-95-20, Sept. 1995, at 67 [hereinafter GAO Report] (prepared at the request of Representative Kenneth E. Bentsen, Jr. (D. Texas)); see also Dana Milbank, Measuring and Cataloguing Body Parts May Help to Weed Out Welfare Cheats, Wall St. J., Dec. 4, 1995, at B1.

n8 See GAO Report, supra note 7, at 6-7.

n9 See id.

n10 See Chandrasekaran, supra note 6.

n11 See Benjamin Miller, Everything You Need to Know About Automated Biometric Identification at 1, in CTST '96 Government Conference Proceedings (1996); see also Mark Ashurst, First World Smartcards and Third World Pensioners: Mark Ashurst Witnesses Technology at the Service of South Africa's Rural Poor, Fin. Times (London), Feb. 16, 1996, at 4.

n12 See Joseph P. Campbell, Jr. et al., Biometric Security: Government Applications and Operations, at 1, in CTST '96 Government Conference Proceedings (1996), available at (updated Nov. 13, 1997) [hereinafter Campbell et al., Biometric Security]; Bob Carter, Biometric Technologies, What They Are and How They Work, in CTST "97 Government Conference Proceedings (1997); Chandrasekaran, supra note 6; Davis, supra note 6; James, supra note 6.

n13 See Donald R. Richards, Rules of Thumb for Biometric Systems, Security Mgmt., Oct. 1, 1995, at 67, available in 1995 WL 8603833; Interview with Peter T. Higgins, biometric consultant, in Washington, D.C. (Jan. 13, 1998).

n14 See Interview with Peter T. Higgins, supra note 13.

n15 See Campbell et al., Biometric Security, supra note 12, at 1.

n16 See id.

n17 See id.; see also Miller, supra note 11, at 4-5.

n18 See Campbell et al., Biometric Security, supra note 12, at 1.

n19 See Miller, supra note 11, at 4-5.

n20 See id.

n21 See Anil K. Jain et al., An Identity-Identification System Using Fingerprints, 85 Proceedings of the IEEE 1365, 1365 (1997).

n22 See id.

n23 The following anecdote indicates how unsecure computer passwords can be. A computer security expert in Chicago commented that he was able to break into more than forty files using "Bulls" as a password. See Mal Florence, The Inside Trade: In This Case, Punishment Would Fit Crime, L.A. Times, Jan. 22, 1997, at C2. For commonly used passwords, see Larry Light, Up Front: The List, Hacker's Delight, Bus. Wk., Feb. 10, 1997, at 4.

n24 Accuracy of biometric systems has two key components: (1) the false acceptance rate defined as the percentage of impostors accepted by the system; and (2) the false rejection rate defined as the percentage of authorized users who are rejected. See, e.g., Campbell et al., Biometric Security, supra note 12, at 2. The equal error rate is the decision threshold where the false acceptance rate equals the false rejection rate. See id. The threshold can be adjusted for many biometric systems. See id. For example, the system can be set so that virtually no impostors will be accepted. See id. This step could be done by requiring an extremely precise match. See id. However, this low false acceptance rate would mean that a high number of authorized users would be rejected. See id.

n25 See id. at 1-2; see also Richards, supra note 13.

n26 See Campbell et al., Biometric Security, supra note 12, at 2-3.

n27 See Richards, supra note 13.

n28 Kevin McManus, At Banks of Future, An Eye for an ID, Wash. Post, May 6, 1996, at A3.

n29 The use of the High Biometrics, Lesser Biometrics and Esoteric Biometrics categories is done for organizational purposes by the author; the categorization is not based on any rigorous technical formula. For a technically impressive categorization of biometrics using a five part taxonomy of applications approach, see James L. Wayman, The State of Biometrics, at 2-3, in CTST '96 Government Conference Proceedings (1996), available in [hereinafter Wayman, The State of Biometrics]. Dr. Wayman's taxonomy includes: 1) What is the intent of the "wolf" or the perpetrator who seeks unauthorized system access? Is she cooperating with the system or not cooperating? 2) Is the customer aware that a biometric measure is being collected? 3) Does the customer regularly use the system? 4) Is the biometric device being supervised? and 5) What is the operating environment? E.g., indoor or outdoor use; climate considerations. See id.; see also Roger Clarke, Human Identification in Information Systems: Management Challenges and Public Policy Issues, Info. Tech. & People, Dec. 1994, at 6, 18 (offering a comprehensive taxonomy of biometric techniques based on appearance, social behavior, bio-dynamics, natural physiography and imposed physical characteristics).

n30 See, e.g., Richards, supra note 13; Interview with Peter T. Higgins, supra note 13.

n31 See Ritter, supra note 4; see also Tim Tierney, Eyes Have it in Future of Law Enforcement: Technology Expands to Identify Suspects, Chi. Trib., June 27, 1995, at 1.

n32 EyeDentify, Inc., EyeDentify, Inc. Retinal Recognition Systems 1 (1996).

n33 See id.

n34 An example of such a device is the EyeDentification System 2001, by EyeDentify, Inc. of Baton Rouge, Louisiana.

n35 See EyeDentify, Inc., supra note 32.

n36 See id.; see generally EyeDentify Targets Lower End of the Market, Security Tech. News, Apr. 22, 1994.

n37 See EyeDentify, Inc., supra note 32.

n38 See Miller, supra note 11, at 7 ("The toughest hurdle for the technologies continues to be user resistance.").

n39 See Chandrasekaran, supra note 6.

n40 See Richard P. Wildes, Iris Recognition: An Emerging Biometric Technology, 85 Proceedings of the IEEE 1348, 1348-50 (1997).

n41 See id. at 1349. These randomly-distributed immutable structures include: "the trabecular meshwork of connective tissue, collagenous stromal fibers, ciliary processes, contraction furrows, crypts, vasculature, rings, corona, coloration and freckles." Harby, supra note 4; see also John Burnell, ATM Makers Eye Iris Identification, Automatic I.D. News, Sept. 1, 1995, at 1. The iris has more than 400 "degrees of freedom" (measurable features and characteristics) as opposed to about 60 degrees of freedom for the fingerprint which, according to many security experts, makes iris recognition a more secure identification system. See id.

n42 See Harby, supra note 4.

n43 See, e.g., Harby, supra note 4, at 38.

n44 See McManus, supra note 28.

n45 For example, equipping ATM with an iris recognition system costs $ 4,000 to $ 5,000 per ATM. See Bob Fernandez, Body Language, Phila. Inquirer, July 24, 1997, at F1. "An ATM without the system costs about $ 35,000." Id.

n46 See Chandrasekaran, supra note 6.

n47 The Japanese and other Asians, whose cultural sensitivities toward physical touching generally differ from Americans, have reacted well to this feature. See Interview with Donald R. Richards, Former Director of Program Development for IriScan, in Fairfax, Va. (Mar. 26, 1996) [hereinafter Interview with Richards]. Iris recognition will be used at the Winter Olympics in Nagano, Japan for access control to the firearms used for the biathlon. See Amy Shipley, A Look Towards Nagano: News In Brief, Wash. Post, Jan. 23, 1998, at C4.

n48 English plant morphologist N. Grew wrote the first scientific paper on fingerprints in 1684. See Jain et al., supra note 21, at 1367-69. Features of fingerprints, including the branch and end points of epidermal ridges, were used by Sir F. Galton in 1872 "to develop a probablistic model of fingerprint individuality." Andrea R. Roddy & Jonathan D. Stosz, Fingerprint Features--Statistical Analysis and System Performance Estimates, 85 Proceedings of the IEEE 1390, 1391 (1997). These are known as "Galton features" or "minutiae." Id.

n49 See Jain et al., supra note 21, at 1367-69.

n50 This category also includes fingertip structure, finger length, finger pattern.

n51 See Chandrasekaran, supra note 6.

n52 See Jain et al., supra note 21, at 1367-69; Roddy & Stosz, supra note 48, at 1391.

n53 See Survey: Market Trends, supra note 6, at 14.

n54 See id.

n55 Fingerprints cannot be reliably taken from about two percent of the population. See Hansell, supra note 6. In addition, in an effort to defeat the efforts of law enforcement, criminals will go to great lengths to alter their fingerprints. For example, they will deliberately cut their fingerprints to create scar tissue in hopes of marring the print. See Ritter, supra note 4. They occasionally put powerful adhesives on their fingerprints in an effort to avoid detection. See id. Richards reports of at least one case where the fingerprint remained on the platen thus enabling a person to tape his fingerprint, place it on the glass plate and be accepted by the system; in other words, the system read the previous person's fingerprint. See Richards, supra note 13.

n56 Miller, supra note 11, at 7.

n57 See Chandrasekaran, supra note 6.

n58 See Richards, supra note 13.

n59 See Ira Breskin, Biology-Based Identification Forms Security Systems Niche, Investor's Bus. Daily, Jan. 17, 1996, at A6.

n60 See Chandrasekaran, supra note 6; Miller, supra note 11, at 7 (stating that the reference template for one of the products is less than ten bytes).

n61 See, e.g., Ron Martz, Want to Get In? You'll Have to Give Them a Hand, Atlanta Const., Sept. 7, 1994, at D6.

n62 See Miller, supra note 11, at 7.

n63 At Walt Disney World, "finger scanning" is used rather than "hand scanning;" Coca-Cola also uses hand-scanning technology for time and attendance. See Chandrasekaran, supra note 6.

n64 See id.

n65 See id. Since it is less accurate than retinal scanning, iris recognition and finger imaging, hand geometry can, for example, be combined with the use of another identifier such as a PIN, password or a photograph, for added security.

n66 See id.

n67 Ken Phillips, In-Your-Face Security, PC WEEK, Mar. 24, 1997, at 97. The product reviewed was TrueFace CyberWatch by Miros, Incorporated. See id.

n68 See McManus, supra note 28.

n69 See Chandrasekaran, supra note 6.

n70 See Miller, supra note 11, at 7.

n71 See Joseph P. Campbell, Jr., Speaker Recognition: A Tutorial, 85 Proceedings of the IEEE 1437, 1438 (1997) [hereinafter Campbell, Speaker Recognition].

n72 See id. at 1437-62.

n73 See id. at 1437-38.

n74 See id.

n75 See Woodward, Biometrics Offers Security, supra note 6, at 11.

n76 See McManus, supra note 28; see also Campbell, Speaker Recognition, supra note 71, at 1438.

n77 See Miller, supra note 11, at 8.

n78 Id.

n79 See Woodward, Biometrics Offers Security, supra note 6, at 11.

n80 See Richards, supra note 13.

n81 See id. at 12; see also Interview with Dr. Arthur S. DiDio and Dr. L. John A. DiDio, in Washington, D.C. (Mar. 22, 1997) [hereinafter Interview with Dr. Arthur S. DiDio and Dr. L. John A. DiDio]; Interview with Richards, supra note 47; McManus, supra note 28.

n82 See EU Veincheck Project Takes Off, Biometric Tech. Today (SJB Services, England), Sept. 1996, at 1, 1-2. A vein measurement system, known as Veincheck, is scheduled to be operational at several European sites in 1997, including Heathrow Airport and the Central Bank of Ireland. See id. at 2.

n83 See id.

n84 See id.

n85 See E-mail communication from Joe Rice, vein measurement expert (Dec. 21, 1996); see also Veincheck Biometric Homepage (visited Nov. 28, 1997) .

n86 Letter from Dr. L. John A. DiDio to the author (Apr. 2, 1997) (on file with the author).

n87 See the bibliography of the Anatomischer Anzeiger and in the abstracts of the Anatomischer Bericht; Interview with Dr. Arthur S. DiDio and Dr. L. John A. DiDio, supra note 81.

n88 See Facsimile communication from Dr. L. John A. DiDio to the author (Apr. 2, 1997) (on file with the author).

n89 See Biometric Body Odors . . . No, We Are Not Kidding, Pers. Identification News, June 1995, at 5. The company is named Bloodhound Sensors. See id.

n90 See id.

n91 See id.

n92 See supra part II.A.

n93 Gary Roethenbaugh, Biometrics: A Global Perspective, at D3, in BiometriCon '97 (1997); see also Survey: Market Trends, supra note 6, at 11-16.

n94 See Chandrasekaran, supra note 6 (citing Ben Miller, editor of Personal Identification News).

n95 See Pers. Identification News, The 1997 Advanced Card & Identification Tech. Sourcebook 38 (1996). For a more detailed discussion of biometric applications, see, for example, Chandrasekaran, supra note 6.

n96 See Alice LaPlante, Systems in the Slammer, Computerworld, Apr. 17, 1995, at 1, 89, 93, 97.

n97 See Ritter, supra note 4.

n98 See id.

n99 See id.

n100 See id.

n101 For example, a murder fugitive picked up on a misdemeanor charge, gives a fake name and alias documentation. With the former system, it could take days to match the fugitive to his true identity. See id. Inmates will also attempt to outwit prison authorities by establishing a false identity by memorizing one another's name, addresses and personal information. See LaPlante, supra note 96, at 93.

n102 See LaPlante, supra note 96, at 89; see also Ritter, supra note 4. Resources are also saved on the initial enrollment process as skilled fingerprint technicians, using ink and paper to capture the fingerprints, are no longer necessary.

n103 Jamaica is experimenting with an Elector Registration System (ERS) to register eligible voters incorporating an identification card with fingerprint minutiae data. See South Africa and Jamaica Use Fingerprints to Identify Citizens, Biometric Tech. Today (SJB Services, England), Oct. 1996, at 1, 1-2.

n104 For example, New York uses an automated finger imaging system (AFIS) for the identification of public assistance recipients. See Richard Nawrot, New York State Department of Social Services Automated Finger Imaging System, Biometrics Human Services User Group (Conn. Dep't of Soc. Services, Hartford, CT), Sept. 1997, at 2-4.

n105 See Ronald J. Hays, INPASS: INS Passenger Accelerated Service System (last modified Jan. 4, 1996) .

n106 For example, a voice verification system aids in border crossings between the United States and Canada in Scobey, Montana. See Reports from the States and Provinces, supra note 6, at 2. Also, in 1996, Congress required the use of a biometric identifier in connection with border crossing identification cards:

The term "border crossing identification card" means a document of identity . . . issued to [qualifying aliens] . . . . Such regulations shall provide that (A) each such document include a biometric identifier (such as the fingerprint or handprint of the alien) that is machine readable and (B) an alien presenting a border crossing identification card is not permitted to cross over the border into the United States unless the biometric identifier contained on the card matches the appropriate biometric characteristic of the alien.

8 U.S.C.A. § 1101(a)(6) (West Supp. 1997).

n107 At the federal level, for example, Congress specifically required that the Secretary of Transportation, through the Federal Highway Administration (FHWA), "shall prescribe regulations on minimum uniform standards for a biometric identification system to ensure the identification of operators of commercial motor vehicles." The Truck and Bus Safety and Regulatory Reform Act of 1988, Pub. L. No. 100-690 § 9105(a), 102 Stat. 4530 (1988) (codified as amended at 49 U.S.C. § 31309(d)(2) (1994)). In mandating this biometric identification system, Congress responded to public safety concerns that commercial truck drivers were allegedly obtaining concurrent commercial licenses from various individual states in an attempt to minimize the true extent of their traffic violations. See Jim Wayman, Presentation, in Biometric Consortium 9, Arlington, Virginia, Apr. 8, 1997.

n108 See Roethenbaugh, supra note 93, at D9.

n109 See generally id. at D11-12.

n110 See id. at D11.

n111 National Identity Card proposals are usually met with concern and consternation in the United States and other western countries. See, e.g., John J. Miller & Stephen Moore, A National ID System: Big Brother's Solution to Illegal Immigration, Policy Analysis, Sept. 7, 1995, at 1 ("The computer registry and national ID card, which would confer on the federal government vast new police-state powers, is highly incompatible with . . . expanding freedom and reducing government. . . . A computer registry would impose large costs on American citizens in terms of both dollars and lost liberties."); Robert Ellis Smith, The True Terror is in the Card, N.Y. Times, Sept. 8, 1996, at 58 (objecting to the use of a national identity card as "dehumanizing . . . and . . . destructive of a free society"). However, the Government of the Philippines has decided to embark on an ambitious national identity card project with plans to enroll up to 63 million people; the South African Home Affairs National Identification System (HANIS) will involve an identity card combined with a biometric identifier. See South Africa and Jamaica Use Fingerprints to Identify Citizens, supra note 103, at 1-2.

n112 For a detailed explanation of INS biometric programs from which this section of the paper is largely based, see Hays, supra note 105.

n113 See id.

n114 See id.

n115 See Immigration: INSPASS and IDENT Branch Out, Biometric Tech. Today (SJB Services, England), Sept. 1996, at 5, 5. Apparently, the senior leadership of the INS is still mulling the options.

n116 See id.

n117 See Lisa Corbin, Icons of Information Technology, Gov't Executive, Dec. 1996, at 33, 33-34, available in .

n118 See Hays, supra note 105.

n119 Under the IDENT program, after individuals apprehended at the border are scanned-in during the booking process, the finger images are then computer matched against a central INS database of criminals and known smugglers in Washington, D.C. See Immigration: INSPASS and IDENT Branch Out, supra note 115, at 5. "Between October 1994 and October 1995, nearly half a million sets of fingerprints and photographs were entered into the system. In less than one year, IDENT has identified 1,378 criminal immigrants in San Diego." Tim Biggs, Enhanced Security: Border Indentity Checks, in Outline to Efficiency, Gov't Executive, Dec. 1997, at 36. An IDENT site was also established at Atlanta in 1996 during the Summer Olympics. See Immigration: INPASS and IDENT Branch Out, supra note 115, at 5.

n120 Biggs, supra note 119, at 35.

n121 See Hays, supra note 105.

n122 However, the rumored move by INS to finger imaging conflicts with Germany's Ministry and Interior's decision to embark on hand geometry systems. See Immigration: German Government Chooses Hand Geometry, Biometric Tech. Today (SJB Services, England), Sept. 1996, at 3.

n123 See Chandrasekaran, supra note 6.

n124 See id.

n125 See id.; see also Phillips, supra note 67.

n126 See Chandrasekaran, supra note 6.

n127 See Harby, supra note 4, at 38; see also Sensar, Oki Electric Sign $ 41.9 Mil Agreement for Iris Recognition, Biometric Dig. (William Rogers & Assoc., St. Louis, Mo.), Nov. 1996, at 1 [hereinafter Sensar]. See generally Trends in Japan: Iris Checks at ATM's, Japan Now, Mar. 1997, at 3 [hereinafter Iris Checks at ATM's].

n128 See Jennifer Tanaka & Beth Kwon, Technology: An Eye for ID, Time, Dec. 15, 1997, at 12.

n129 See Interview with Richards, supra note 47.

n130 See id.

n131 See id.

n132 Id.

n133 See Eye: Cash Machine Scanners on the Launch Pad, Biometric Tech. Today (SJB Services, England), Oct. 1996, at 4, 4.

n134 See A Cutting-Edge Credit Union Makes an Impression with Biometrics, Bank Network News, Apr. 25, 1997, available in 1997 WL 8924695.

n135 See id.; see also Biometrics in a Virtual Branch, Biometric Dig. (William Rogers & Assoc., St. Louis, Mo.), Apr. 1997, at 6.

n136 See Sharon Latka-Davis, Iris Ident ATM Security System Catches Eye of Bankers, Telegram & Gazette (Worcester, Ma.), July 22, 1996, at C1; Joel S. Lisker, Paving the Way for Biometric Technology (presentation in Las Vegas, Nevada, Mar. 12, 1997). Mr. Lisker is Senior Vice President, Security & Risk Management for MasterCard International. See also Matt Barthel, Banks Eyeball Sci-Fi Style Identification for ATMs, Am. Banker, Sept. 22, 1995, at 14. In late 1996, Oki expanded the scope of its 1995 contract with IriScan and Sensar to ten Pacific Rim countries. See Sensar, supra note 127, at 1.

n137 See Iris Checks at ATM's, supra note 127, at 3.

n138 See Graeme Browning, Paying More to a Faceless Industry, 28 Nat'l J. 2766, 2766 (1996).

n139 See Chandrasekaran, supra note 6.

n140 See Interview with Dr. F.P. Nasrallah, Assistant Professor of Ophthalmology at George Washington University, and Dr. Arthur S. DiDio, M.D., in Washington, D.C. (Apr. 4, 1996) [hereinafter Interview with Dr. Nasralla and Dr. Arthur S. DiDio]. See generally Barbara Bates, A Guide To Physical Examination and History Taking 213-215 (5th ed. 1991).

n141 See Interview with Dr. Nasrallah and Dr. Arthur S. DiDio, supra note 140.

n142 Id.

n143 Id.

n144 See id.

n145 See Harold Chen, M.D., Medical Genetics Handbook 221-226 (1988); see also Michael Skoler, Finger and Palm Prints: A Window on Your Health, Glamour, Apr. 1984, at 248.

n146 See Gastroenterology: Fingerprinting GI Disease, Johns Hopkins Physician Update, Apr. 1996, at 5. CIP, a motility disorder, causes its victims "to experience excruciating physical pain, vomiting, nausea, alternating bouts of severe constipation and diarrhea, and debilitating weight loss." Id.

n147 Chen, supra note 145, at 225.

n148 See id.

n149 See id. at 226; Skoler, supra note 145, at 250.

n150 See Simon Levay, Queer Science: The Use and Abuse of Research Into Homosexuality 157-158 (1996); see also Richard E. Cytowic, All in the Genes, Wash. Post, Sept. 1, 1996, at 9 (book review).

n151 Drs. Hall and Kimura found that in the majority of both males and females, there are more ridges on the fingerprints of the right hand than the left hand, but more women than men have the minority characteristic known as leftward asymmetry. See Levay, supra note 150, at 157. When the fingerprint patterns of gay men were compared with straight men, researchers found that more gay men than straight men had the minority characteristic of leftward asymmetry. See id.

n152 For example, the group studied by Drs. Hall and Kimura only included 182 heterosexual men and 66 homosexual men. See id.

n153 GAO Report, supra note 7, at 28-29.

n154 United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980) (holding that medical records of a private sector employee, while within the ambit of constitutional privacy protection, could nonetheless be disclosed to a government agency upon a proper showing of governmental interest); see also Doe v. Attorney General of the United States, 941 F.2d 780, 796 (9th Cir. 1991) ("Information regarding an individual's HIV status or AIDS diagnosis would fall within the ambit of the privacy protection afforded medical information.").

n155 See Fred H. Cate, Privacy in the Information Age 19-31 (1997). While a detailed discussion of the many facets of privacy is beyond the scope of this paper, an excellent starting point is Richard C. Turkington et al., Privacy: Cases and Materials (1992).

n156 Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 428 (1980).

n157 Charles Fried, An Anatomy of Values 140 (1970).

n158 Richard B. Parker, A Definition of Privacy, 27 Rutgers L. Rev. 275, 281 (1974) (internal quotation marks omitted).

n159 Tom Gerety, Redefining Privacy, 12 Harv. C.R.-C.L. L. Rev. 233, 236 (1977).

n160 United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 n.5 (3d Cir. 1980).

n161 Lillian R. Bevier, Information About Individuals in the Hands of Government: Some Reflections on Mechanisms for Privacy Protection, 4 Wm. & Mary Bill Rts. J. 455, 458 (1995) (footnote omitted); see also Richard S. Murphy, Property Rights in Personal Information: An Economic Defense of Privacy, 84 Geo. L.J. 2381, 2381 (1996).

n162 Turkington et al., supra note 155, at 35.

n163 See David H. Flaherty, Privacy in Colonial New England 85-88 (1972).

n164 General search warrants were also known as writs of assistance. See Marshall v. Barlow's, Inc., 436 U.S. 307, 327 (1978) (Stevens, J., dissenting). These were issued by the Crown authorities to enforce trade and navigation laws in the colonies. See id. The colonist's intense dislike of the British practice of issuing general warrants led to the establishment of the Fourth Amendment in the Bill of Rights. See id.

n165 Flaherty, supra note 163, at 87-88.

n166 Id. In the period leading up to the Revolutionary War, Otis was a leading political activist and legal advocate. Sadly for this American patriot, he suffered a blow on the head during an altercation with a Crown official in 1769 which rendered him insane until his death in 1783. See 8 New Encyclopaedia Britannica 1042 (15th ed. 1997).

n167 Or "zones of privacy," to use Justice Douglas' term. Griswold v. Connecticut, 381 U.S. 479, 484 (1965); see also Cate, supra note 155, at 52.

n168 See U.S. Const. amend. I.

n169 See U.S. Const. amend. III.

n170 See U.S. Const. amend. IV.

n171 See U.S. Const. amend. V.

n172 U.S. Const. amend. IX; Griswold, 381 U.S. at 484. In his Griswold concurrence, Justice Goldberg stressed that the Ninth Amendment demonstrated that the Founding Fathers believed that fundamental rights existed outside the first eight amendments. See id. at 488 (Goldberg, J., concurring). In their Griswold dissents, Justices Black and Stewart found no right to privacy in the Constitution. See id. at 508 (Black, J., dissenting); id. at 530 (Stewart, J., dissenting); see also Turkington et al., supra note 155, at 18-19.

n173 U.S. Const. amend. X.

n174 This message, sent by Morse over a telegraph line running from Washington, D.C. to Baltimore, Maryland, is from Numbers 23:23. See 26 Encyclopedia Americana: International Edition 394-95 (1994).

n175 See Alan F. Westin, Privacy and Freedom 337 (1967) (citing W. Scott & M. Jarnagin, Treatise Upon the Law of Telegraphs, Appendix, 457-507 (1868)).

n176 See id.

n177 See id.

n178 See id.

n179 See id.

n180 Turkington et al., supra note 155, at 18.

n181 Richard F. Hixson, Privacy in a Public Society: Human Rights in Conflict 30 (1987); see also Goldberg, supra note 2, at 115.

n182 See DeMay v. Roberts, 9 N.W. 146, 149 (Mich. 1881); see also Turkington et al., supra note 155, at 149.

n183 DeMay, 9 N.W. at 149.

n184 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

n185 Id. at 193.

n186 Westin, supra note 175, at 346. The tremendous growth in newspapers and a more sensational, personal style of newspaper reporting were factors that influenced Warren and Brandeis. See Warren & Brandeis, supra note 184, at 195. In sheer physical terms, the number of newspapers grew dramatically. See Hixson, supra note 181, at 28. For example, in 1800, there were about 921 newspapers in the United States; by 1850, 758,000; by 1870, 2,607,000; by 1890, 8,387,000. See id. Regarding the change in journalistic style, it is interesting to note that President Grover Cleveland complained when newspaper reporters followed the President and his new bride on their honeymoon in 1886. See id. at 28-29. Other technological factors in the changing America of the late nineteenth century which influenced the authors included development of the telephone, whereby conversation was projected outside the home or office; the microphone and dictagraph recorder, whereby private conversations could be heard by others and recorded; and instant photography, whereby the privacy of informal areas could now be invaded. See Westin, supra note 175, at 338.

n187 See Pasevich v. New England Life Ins. Co., 50 S.E. 68, 72 (Ga. 1905) (holding that the unauthorized use of a person's photograph for commercial purposes was a violation of a person's privacy interests). An earlier case decided by a state court recognizing a right to privacy is Schuyler v. Curtis, 15 N.Y.S. 787, 787-88 (N.Y. Sup. Ct. 1891) (recognizing a right of privacy by granting an injunction against the making and public exhibition of a statue of a deceased person where it is not shown that she was a public character. The court noted, "The moment one voluntarily places himself before the public, either in accepting public office, or in becoming a candidate for office, or as an artist or literary man, he surrenders his right to privacy pro tanto, and obviously cannot complain of any fair or reasonable description or portraiture of himself."); see also Hixson, supra note 181, at 38-41.

n188 277 U.S. 438 (1928).

n189 Id. at 478 (Brandeis, J., dissenting); see also Cate, supra note 155, at 57; Goldberg, supra note 2, at 114.

n190 Alderman & Kennedy, supra note 1, at xiv. It should also be noted that Warren and Brandeis were concerned about private as opposed to official invasions of privacy. See, e.g., Hixson, supra note 181, at 33.

n191 U.S. Const. amend. XIV, § 1.

n192 Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

n193 Id. at 847.

n194 Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)).

n195 Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977). These terms have been criticized for lack of clarity. See, e.g., Robert H. Bork, The Tempting of America: The Political Seduction of the Law 118 (1990) ("The judge-created phrases specify no particular freedom, but merely assure us, in sonorous phrases, that they, the judges, will know what freedoms are required when the time comes.").

n196 See Anita Allen, Legal Issues in Nonvoluntary Prenatal Screening in Aids, in Women and the Next Generation: Towards a Mutually Acceptable Public Policy for HIV Testing of Pregnant Women and Newborns 175 (Ruth R. Faden et al. eds., 1991). At least one scholar has more broadly categorized the Supreme Court's interpretation of constitutional protections for individual privacy as falling into four areas--"expression and association, searches and seizures, fundamental decision-making, and informational privacy." Cate, supra note 155, at 52.

n197 See Cate, supra note 155, at 52.

n198 See id.

n199 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

n200 Id.

n201 See Allen, supra note 196, at 175.

n202 Westin, supra note 175, at 7.

n203 The following hypothetical example might illustrate how decisional privacy concerns could be implicated by a biometric scheme. In response to growing concerns about missing children, a state legislature decides to require all children attending private day care programs to be biometrically scanned for identification purposes. Parents object on the grounds that they are fully satisfied with the less-intrusive security already offered at the private day care program and that their children will be unduly traumatized by the scanning. Educational zone of privacy concerns are possibly implicated.

n204 The legal and policy implications of biometric scanning when used in the private sector are beyond the scope of this paper. While common law privacy torts, state constitutional provisions and state statutes might permit some sort of a recovery for plaintiffs at the state level, before such a broad conclusion can be made, further study is needed. It is also beyond the scope of this paper to discuss how the legal system would handle any tort liability lawsuits arising from any perceived medical concerns arising from the use of biometric technologies. Similarly, the use of biometrics for evidentiary matters in courts of law is not discussed.

n205 Laurence Tribe, The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier (viewed Nov. 28, 1997) (Keynote Address at The First Conference on Computers, Freedom & Privacy (1991)); see also Cate, supra note 155, at 50-51. It should be noted, however, that until its repeal in 1933, the Eighteenth Amendment, which prohibited the sale, manufacture or transportation of intoxicating liquors, severely restricted a private sector activity. See U.S. Const. amend. XVIII, repealed by U.S. Const. amend. XXI.

n206 See Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (rejecting defendant's claim that information in the form of telephone numbers he dialed from his home telephone (what is known as a pen register), could not be turned over to the police absent a search warrant and noting that it "consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties").

n207 U.S. Const. amend. IV.

n208 See, e.g., Katz v. United States, 389 U.S. 347, 360-62 (1967) (Harlan, J., concurring).

n209 See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616 (1989).

n210 See Schmerber v. California, 384 U.S. 757, 767-68 (1966).

n211 See Skinner, 489 U.S. at 618.

n212 See id. at 617.

n213 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).

n214 Id. (quoting Skinner, 489 U.S. at 619) (internal quotation marks omitted).

n215 See Zurcher v. Stanford Daily, 436 U.S. 547, 554-55 (1978).

n216 Chandler v. Miller, 117 S. Ct. 1295, 1298 (1997). Those "circumstances include brief stops for questioning or observation at a fixed Border Patrol checkpoint, or at a sobriety checkpoint, and administrative inspections in "closely regulated' businesses." Id. (citations omitted).

n217 See Elise Bjorkan Clare et al., Criminal Procedure Project, Warrantless Searches and Seizures, 84 Geo. L.J., 743, 811-820 (1996) (discussing administrative search doctrine).

n218 See Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 621-22 (1989).

n219 See Acton, 515 U.S. at 663.

n220 515 U.S. 646 (1995).

n221 Id. at 654.

n222 Id. at 657.

n223 Id. at 658.

n224 Id. at 660.

n225 See Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 621 (1989).

n226 See Michigan v. Clifford, 464 U.S. 287, 294-95 (1984) (holding that a search warrant is required for the administrative search of a residence to investigate the cause of a fire).

n227 See id. at 295.

n228 See James A. Weaver & George W. Beitzel, Fingerprints, Digital Photos and Digital Signatures: Pennsylvania Automated Recipient Identification System (PARIS), at 1, in CTST "96 Government Conference Proceedings (1996). ARIP is found in the 1995 Welfare Reform Bill (Act 1995-20) in Section 44. See id. Similar to Pennsylvania's ARIP, Connecticut recently embarked on a biometrics-based identification scheme. See David Mintie, The Connecticut DSS Biometric Project and EBT Card: Implementation Issues, in CTST "96 Government Conference Proceedings (1996). Legislation was passed effective July 1, 1995 authorizing Connecticut's Department of Social Services (DSS) to implement the Connecticut Digital Imaging System--a state-wide electronic personal identification system that enrolls qualified welfare recipients (consisting of General Assistance (GA) and Aid to Families with Dependent Children (AFDC) clients) into a statewide database using finger-image identification to verify that enrolled clients are eligible to receive benefits. See id. Connecticut's objective was to create a system that would eliminate "dual enrollments" or "double dippers" (the major component of welfare fraud). See id. Interestingly, DSS sought a standardized biometrics platform that would also serve the needs of Connecticut's Department of Motor Vehicles for image capture. See id.

n229 Act of June 30, 1995, ch. 71, 1995 Pa. Laws 20 (amending Public Welfare Code); see also Weaver & Beitzel, supra note 228, at 1-4.

n230 See Weaver & Beitzel, supra note 228, at 1-6. Welfare recipients include Pennsylvanians receiving General Assistance, Food Stamps, and AFDC among others. See id. at 3.

n231 See Act of June 30, 1995, ch. 71, 1995 Pa. Laws 20; see also Weaver & Beitzel, supra note 228, at 1-6.

n232 See All Things Considered: Foolproof Identification Methods Create Privacy Worries (National Public Radio broadcast, Oct. 8, 1996) [hereinafter All Things Considered].

n233 See Act of June 30, 1995, ch. 71, 1995 Pa. Laws 20.

n234 See E-mail communication from David Mintie, Department of Social Services, State of Connecticut, to the author (Apr. 10, 1997) (on file with the author) [hereinafter Mintie, E-mail].

n235 See id. In general terms, procedures related to cross matching include: (1) States match data one or more times each year; (2) States share the costs of the matches; (3) Anti-fraud groups in each state agency get documentation of the "hits," then independently investigate suspect cases. Once the investigation has been completed, they jointly determine the prosecution protocol. See id.

n236 See id.

n237 See id.

n238 See Reports from the State and Provinces, supra note 6, at 2. Aside from the policy aspects of these cross-sharing procedures, administrative concerns, such as costs, also play a role. For example, because of the proprietary nature of the biometric scanning systems, states have to pay for each biometric cross match conducted. Efforts are being made to promote a North East coalition (NCS) approach to cross state matching as a mechanism to reduce these administrative costs for each state. See Mintie, E-mail, supra note 234.

n239 See Mintie, E-mail, supra note 234.

n240 489 U.S. 602 (1989).

n241 Id. at 621 n.5.

n242 429 U.S. 589 (1977).

n243 Paul M. Schwartz, Privacy and Participation: Personal Information and Public Sector Regulation in the United States, 80 Iowa L. Rev. 553, 574-575 (1995). Other scholars have perhaps interpreted the significance of Whalen v. Roe slightly differently. See, e.g., Allen, supra note 196, at 181 ("The Court has come closest to recognizing an independent right of information privacy in Whalen v. Roe."); Michael P. Roch, Filling the Void of Data Protection in the United States Following the European Example, 12 Santa Clara Computer & High Tech. L.J. 71, 89 (1996) ("In Whalen v. Roe, the court sic recognized in dicta that there may exist a right to protect against improper disclosure of personal data."); see also Cate, supra note 155, at 63 ("Having found this new privacy interest in nondisclosure of personal information, the Court . . . applying a lower level of scrutiny, found that the statute did not infringe the individual's interest in nondisclosure."); Peter L. Strauss et al., Gellhorn & Byse's Administrative Law: Cases & Comments 874 (1995) ("A requirement that information of arguable utility to a lawful regulatory program be collected or submitted is unlikely to fall beyond the constitutional power of either federal or state government.").

n244 For a truncated version of this Whalen v. Roe analysis, see John D. Woodward, Building a Biometrics Blueprint: The Lessons of Whalen v. Roe, Biometric Tech. Today (SJB Services, England), Dec. 1996/Jan. 1997, at 9-10.

n245 Whalen, 429 U.S. at 591.

n246 See id. This commission was formally known as The Temporary State Commission to Evaluate the Drug Laws. See id. at 592 n.4.

n247 Id. at 593. The statute classified potentially harmful drugs in five schedules which conformed with relevant federal law. See id. at 592. Schedule II drugs included the most dangerous of the legitimate drugs. See id. at 592-93. Examples of such drugs would include opium, methadone, amphetamines and methaqualone. See id. at 593 n.8. These drugs all have accepted medical uses. The statute also provided for an emergency exception. See id. at 593.

n248 Id.

n249 See id. The office which received the forms was the Bureau of Controlled Substances, Licensing and Evaluation (BCSLE). See Roe v. Ingraham, 403 F. Supp. 931, 932 (S.D.N.Y. 1975), rev'd, Whalen v. Roe, 429 U.S. 589 (1977).

n250 See Whalen, 429 U.S. at 593.

n251 Id.

n252 Id. at 592 n.6.

n253 Id. at 595-96 n.16.

n254 Id. at 596 n.16.

n255 Id.

n256 Id. at 600.

n257 Id.

n258 For a thorough analysis of these categories as discussed in Whalen, see also Schwartz, supra note 243, at 574-75.

n259 See Roe v. Ingraham, 357 F. Supp. 1217, 1222 (S.D.N.Y.), rev'd, 480 F.2d 102 (2d Cir. 1973).

n260 See Roe v. Ingraham, 480 F.2d 102, 109 (2d Cir. 1973).

n261 See Roe v. Ingraham, 403 F. Supp. 931, 936-38 (S.D.N.Y. 1975), rev'd, 429 U.S. 589 (1977). The Court found this privacy right in the Fourteenth Amendment to the Constitution. See id. at 938.

n262 Id. at 937.

n263 See Whalen v. Roe, 424 U.S. 907 (1976) (noting probable jurisdiction).

n264 Whalen v. Roe, 429 U.S. 589, 603-04 (1977).

n265 See id. at 591. The Temporary State Commission to Evaluate the Drug Laws issued two reports which the legislature made part of the legislative history of the statute. See id. at 591 n.4.

n266 Id. at 592.

n267 Id. at 597.

n268 See id. at 593-95.

n269 As the Court in Whalen noted, Justice Brandeis had stated elsewhere:

It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious, or unreasonable. . . . But in the exercise of this high power, we must ever be on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold.

Id. at 597 n.20 (quoting New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)).

n270 Id. at 597.

n271 See id. at 595.

n272 Id. at 598.

n273 Id. at 602 (footnote omitted).

n274 See id. at 603.

n275 Id. (noting that Albany received approximately 100,000 prescription forms for Schedule II drugs monthly).

n276 Id. at 605.

n277 Id.

n278 Id. at 605-06.

n279 See id. at 607 (Brennan, J., concurring).

n280 Id. (Brennan, J., concurring).

n281 Id. (Brennan, J., concurring).

n282 Id. (Brennan, J., concurring).

n283 See id. (Brennan, J., concurring).

n284 See id. at 607-08 (Stewart, J., concurring) (quoting Katz v. United States, 389 U.S. 347, 350-351 (1967)) (footnote omitted).

n285 See id. (Stewart, J., concurring). In the context of biometrics, it is worth stressing that the state courts, which in some cases have been more protective of individual rights than the federal courts, would decide if biometric applications violated any state constitutional provisions. See generally Cate, supra note 155, at 66-68 (discussing state constitutional guarantees of individual privacy, but concluding that "even the most protective state constitutional provisions . . . have yielded little protection for information privacy").

n286 Whalen, 429 U.S. at 609 (Stewart, J., concurring).

n287 For this observation, the author is indebted to Professor Steven Goldberg of the Georgetown University Law Center who shared it in September 1996. Professor Goldberg opined that when a Supreme Court opinion offers broad pronouncements and little factual analysis, it is a sure sign that the Court is on comfortable turf. However, when the opinion deals with intense factual scrutiny, the Court is less sure of itself and thus keeping its options open for the long run. See Interview with Professor Steven Goldberg, Georgetown University Law Center, in Washington, D.C. (Sept. 1996).

n288 See Whalen, 429 U.S. at 602 (The relevant language is the disclosure of medical information, which is "often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient.").

n289 The parallels to Fourth Amendment protections should also be noted.

n290 Bevier, supra note 161, at 457.

n291 Id. at 464 (concluding that the many of the writings on contemporary privacy scholarship related to control of personal information reflect this psychological state).

n292 Clarke, supra note 29, at 34; see also Schwartz, supra note 243, at 560-61.

n293 Planned Parenthood v. Casey, 505 U.S. 833, 850 (1992).

n294 See Iacobucci v. City of Newport, 785 F.2d 1354, 1355-58 (6th Cir.), rev'd on other grounds, 479 U.S. 92 (1986); Walton v. City of Atlanta, 181 F.2d 693, 694 (5th Cir. 1950); Brown v. Brannon, 399 F. Supp. 133, 139-45 (M.D.N.C. 1975), aff'd, 535 F.2d 1249 (4th Cir. 1976); Thom v. New York Stock Exch., 306 F. Supp. 1002, 1012 (S.D.N.Y. 1969), aff'd sub nom. Miller v. New York Stock Exch., 425 F.2d 1074 (2d Cir. 1970).

n295 See, e.g., Thom, 306 F. Supp. at 1012; see also Robert E. Riggs, Privacy Law and Practice § 30.04 (George B. Trubow ed., 1991).

n296 See Thom, 306 F. Supp. at 1004-05.

n297 Id. at 1009.

n298 See id. at 1009-10.

n299 See Iacobucci, 785 F.2d at 1359-60. The City of Newport's municipal ordinance was upheld "as a proper exercise of the City's police power" even though it contained no statement of purpose. Id. at 1355.

n300 See Brown v. Brannon, 399 F. Supp. 133, 139 (M.D.N.C. 1975), aff'd, 535 F.2d 1249 (4th Cir. 1976).

n301 See Walton v. City of Atlanta, 181 F.2d 693, 694 (5th Cir. 1950).

n302 See, e.g., People v. Stuller, 89 Cal. Rptr. 158, 167 (Cal. Ct. App. 1970) (upholding the constitutionality of mandatory fingerprinting for certain employees of establishments serving liquor by the drink).

n303 See Perkey v. Department of Motor Vehicles, 721 P.2d 50, 55-56 (Cal. 1986).

n304 Id. at 53. At the time of its writing, the court was correct; however, retinal scanning, iris recognition and finger imaging should now be added to the "assuredly accurate source of identification" list. Id.

n305 See id. at 60.

n306 See id. at 55-56.

n307 See James J. Killerlane III, Note, Finger Imaging: A 21st Century Solution to Welfare Fraud at Our Fingertips, 22 Fordham Urb. L.J. 1327, 1335-36 (1995); Nawrot, supra note 104, at 2-4.

n308 See Killerlane, supra note 307, at 1361-62.

n309 See N.Y. Soc. Serv. Law § 139-a(3) (McKinney 1994); see also Killerlane, supra note 307, at 1338 ("The [New York State] law now limits the use of finger imaging information solely to detect multiple enrollments, or to further a criminal investigation or prosecution of crimes arising from multiple enrollment for Home Relief.").

n310 See Killerlane, supra note 307, at 1331-33.

n311 Id. at 1365. Note, however, that Killerlane did not examine the medical and sexual orientation information concerns related to finger imaging.

n312 See Recent Legislation, Welfare Policy--Fraud Prevention--New York Requires Finger Imaging for Welfare Recipients--1995 N.Y. Laws 83, § 266, 109 Harv. L. Rev. 1168, 1170-71 (1996).

n313 Id. at 1173 (suggesting that the empirical data regarding the success of AFIS is at best uncertain and that the current anti-welfare political environment motivated the adoption of biometrics for welfare entitlement programs like the one in New York).

n314 This section of the paper is largely derived from Professor Steven Goldberg's scholarly treatment of the policy issues inherent in the "regulatory gap," a phrase coined by Professor Goldberg. See Goldberg, supra note 2, at 2.

n315 Id. at 89.

n316 Id.

n317 Id.

n318 Id. at 2.

n319 See U.S. Const. art. I, § 8, cl. 3.

n320 See, e.g., Wickard v. Filburn, 317 U.S. 111, 118-29 (1942) (holding that the federal government had the power to set quotas on wheat grown by every farmer in the United States to include wheat grown for personal consumption).

n321 See, e.g., Hipolite Egg Co. v. United States, 220 U.S. 45, 58 (1911) (upholding the seizure of adulterated eggs by federal officials).

n322 See Goldberg, supra note 2, at 85-86.

n323 See id.

n324 See id.; see also South Dakota v. Dole, 483 U.S. 203, 212 (1987) (upholding Congressional power to place conditions related to a state's use of federal funds).

n325 Goldberg, supra note 2, at 87.

n326 See id.

n327 Two compelling reasons explain the popularity of Congressional delegation to administrative agencies: 1) administrative, in that the heavy volume of cases and complexity of them would overburden Congressional resources; and, 2) political insofar as by delegating, Congress can let the administrative agencies contend with controversial political dilemmas by passing the buck. See id. at 87-88.

n328 See id. at 88.

n329 See id. at 93-96.

n330 See id. at 96-98; see also Mark Hansen, No Place to Hide, A.B.A. J., Aug. 1997, at 4448 (discussing recent efforts of the American Bar Association, the American Civil Liberties Union and several legal scholars to influence policy involving surveillance technologies and contraband detection devices, although not specifically addressing issues raised by the use of biometrics).

n331 See, e.g., John D. Woodward, Biometrics: Privacy's Foe or Privacy's Friend?, 85 Proceedings of the IEEE 1480, 1485 (1997) (discussing the privacy concerns related to the use of biometric technology).

n332 Chandrasekaran, supra note 6 (quoting Robert Ellis Smith, publisher of Privacy Journal).

n333 All Things Considered, supra note 232.

n334 See id.

n335 FutureBanking, Am. Banker, Oct. 21, 1996, at 14A; see also Smith, supra note 111, at 58-59 (objecting to the use of a national identity card as "dehumanizing" and "destructive of a free society").

n336 The 700 Club, Fact Sheet: Biometrics--Chipping Away Your Rights, Oct. 9, 1995.

n337 See id.

n338 See Milbank, supra note 7.

n339 Throughout this paper, the term "general counsel" is used generically to describe the government agency's legal counsel. The U.S. Department of State, for example, refers to this office as the Office of the Legal Adviser.

n340 See, e.g., Whalen v. Roe, 429 U.S. 589 (1977).

n341 Ann Cavoukian, Go Beyond Security--Build in Privacy: One Does Not Equal the Other (viewed Nov. 28, 1997) (CardTech/ SecurTech "96 Conference, May 14, 1996). Dr. Cavoukian currently serves as the Information and Privacy Commissioner of Ontario, Canada. See Consultations Begin On Draft Law To Protect Personal Health Information, Can. Newswire, Nov. 21, 1997 (page number unavailable), available in WESTLAW, Allnewsplus database.

n342 See id.

n343 See id.

n344 See, e.g., Perkey v. Department of Motor Vehicles, 721 P.2d 50, 53 (Cal. 1986); see also Cavoukian, supra note 341.

n345 Several states routinely disclose and sell information that they require from citizens. For example, Florida sells drivers' license information to marketing companies. See, e.g., Schwartz, supra note 243, at 608.

n346 The "use limitation" principle could be easily implemented by the agency's informal rulemaking procedures.

n347 See, e.g., Whalen v. Roe, 429 U.S. 589, 594 (1977).

n348 Cf. id.

n349 See, e.g., Wayman, The State of Biometrics, supra note 29, at 8.

n350 At least one company, Mytec, claims to have created "the world's first anonymous verification system using finger patterns and light waves to protect privacy and maximize security" Don Mills, Privacy Through Technology: Mytec True Recognition System Maximizes Security With the Touch of a Finger, Can. NewsWire, June 13, 1996, available in WESTLAW, Allnewsplus database; see also Cavoukian, supra note 341.

n351 See Mills, supra note 350.

n352 See id.

n353 See id.

n354 See id. While initial reports on this technology seem favorable, the system is still new and not widely deployed. There are, however, advantages to taking and storing the actual finger image. For example, for technical reasons, not all finger imaging systems measure the same exact points (or what are known minutiae) of the fingerprint. Because of this absence of uniformity in the finger imaging process, having the actual finger image enables the agency to re-enroll a subject from the stored image in the event the agency ever wanted to change to a different finger imaging system. Otherwise, the subject would have to be required to physically re-enroll.

n355 Limiting staff access to these databases is all the more difficult in a time of budget cuts and personnel downsizing when managers are under pressure to cross-train personnel to perform multiple tasks in understaffed offices.

n356 See Whalen v. Roe, 429 U.S. 589, 594-95 (1977).

n357 See Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970).

n358 On a purely speculative note, it is possible that vein measurement could implicate medical information concerns. For example, drug users might have unusual vein patterns. See Interview with Dr. Arthur S. DiDio and Dr. L. John A. DiDio, supra note 81.

n359 To the extent that the biometric future is uncertain, it's possible that today's esoteric biometric might become tomorrow's high biometric.

n360 See GAO Report, supra note 7, at 2.

n361 See Fingerprint Scanners to Cost Half as Much, Am. Banker, Apr. 24, 1996, at 7.

n362 This last factor is admittedly a "soft" variable that is impossible to measure. On a purely anecdotal basis, this writer has been impressed with the fact that many of the biometric professionals both in government service and the private sector have a former national security or law enforcement background. These professionals tend to be inherently comfortable with fingerprints as a proven, time-tested, dependable identifier.

n363 See Brad Edmondson, People Patterns: Meltdown of the Nuclear Family Continues as More Parents Go Solo, Wall St. J., Jan. 31, 1997, at A7A.

n364 See id.

n365 Id.

n366 In this scenario, like the U.S. automobile industry of the 1960s, biometrics could go the way of the Big Three--retinal scanning, iris recognition and finger imaging.

n367 An example is the use of biometrics by the INS as discussed supra notes 112-20 and accompanying text. Accord Investment: Brokers Recommend Biometrics Sector, Biometric Tech. Today (SJB Services, England), Mar. 1996, at 3.

n368 While not specifically analyzing biometric databases, at least one privacy expert recently commented that given the incentive to steal data and the computer advances which make hacking or "electronic aggression" fairly easy, ideas of computer privacy are a "Luddite dreamland." Daniel S. Greenberg, Computers Put the Byte on Privacy, Wash. Post, Nov. 4, 1996, at A19. Criminal sanctions for unauthorized disclosures would be all the more necessary to the extent that a secondary market develops for biometric identification information. The specter of biometric identification information being bought and sold like names and addresses for mailing lists, while too Orwellian for many Americans, could make such government databases lucrative targets of data thieves.

n369 Lisa A. Alyea & Joseph P. Campbell, Jr., Update on the U.S. Government's Biometric Consortium (visited Nov. 28, 1997) .

n370 See id.; see also Campbell et al., Biometric Security, supra note 12, at 5.

n371 See Alyea & Campbell, supra note 369.

n372 Id. (emphasis removed).

n373 See id.

n374 See Dr. John Colombi, U.S. Government's National Biometric Test Center Effort, Presentation Before the Ninth Biometric Consortium Meeting (Apr. 8, 1997). Dr. Colombi has been named the Center's first director. U.S. Government funding for the Center is relatively modest: $ 400,000 for FY97; $ 550,000 for FY98 and $ 500,000 for FY99. See id.

n375 Id.

n376 Interview with Dr. Jim Wayman, Ph.D., in Arlington, Va. (Apr. 8, 1997). Dr. Wayman is the Principal Investigator of the National Biometric Test Center.

n377 See id.

n378 See id.

n379 See id.

n380 To date, the BC has done an excellent job of making information readily available to the public. See Biometric Consortium (visited Nov. 28, 1997) .

n381 See Skinner v. Railway Labor Executives Assoc., 489 U.S. 602, 621 n.3 (1989); see also supra note 241 and accompanying text.

 

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