law

This page considers legal aspects of biometrics

    privacy

Salient works include the Australian Law Reform Commission's 2003 Essentially Yours: The Protection of Human Genetic Information in Australia report, Thomas Murray's 'The Genome and Access to Health Care: Two Key Ethical Issues' in The Human Genome Project & the Future of Health Care (1996), Dorothy Nelkin & Susan Lindee's The DNA Mystique: The Gene As Cultural Icon (1995), Jennifer Geetter's 2002 Coding for change: the power of the human genome to transform the American health insurance system and Philip Leith's review of Genetic Privacy: A Challenge to Medico-legal Norms (Cambridge: Cambridge Uni Press 2002) by Graeme Laurie, one of the more interesting studies of theory and practice regarding ownership and custodianship of medical information. A serviceable introduction to technologies is provided by Jeff Augen's Bioinformatics in the Post-Genomic Era (Upper Saddle River: Addison-Wesley Longman 2005)

For use and abuse of genetic material as a unique personal identifier see Who Owns Information? From Privacy to Public Access by Anne Wells Branscomb (New York: Basic Books 1994),

There is a useful discussion in Caplan & Torpey's Documenting Individual Identity, noted above, and in Genetic Secrets: Protecting Privacy & Confidentiality in the Genetic Era (New Haven: Yale Uni Press 1997) edited by Mark Rothstein.

    studies

There has been no major work on law and biometrics as a class of technologies.

Introductions

Points of entry to legal issues include Darcie Sherman's 2005 Biometric Technology: The Impact on Privacy (Comparative Research in Law & Political Economy, Research Paper No. 5); ‘Note - Biometrics: Weighing Convenience And National Security Against Your Privacy’ by Lauren Adkins in 13 Michigan Telecommunications and Technology Law Review (2007), 541-555; 'Considerations on the Emerging Implementation of Biometric Technology' by Robin Feldman in 25 Hastings Communications & Entertainment Law Journal (2003), 654-682; and the 2004 Biometrics at the Frontiers: Assessing the Impact on Society for the European Parliament Committee on Citizens' Freedoms & Rights, Justice and Home Affairs report (PDF) highlighted earlier in this note.

Other works include ‘Identifying Legal Concerns in the Biometric Context’ by Yue Liu in 3(1) Journal of International Commercial Law and Technology (2008), 45-56; ‘Note: Catching Up To Our Biometric Future: Fourth Amendment Privacy Rights and Biometric Identification Technology’ by Rudy Ng in 28 Hastings Communications and Entertainment Law Journal (2006), 425-451; ‘Making our bodies identify for us: legal implications of biometric technologies’ by Corien Prins in 14(3) Computer Law & Security Report (1998), 159-165; ‘Biometric Scanning, Law & Policy: Identifying the Concerns; Drafting the Biometric Blueprint’ by John Woodward in University of Pittsburgh Law Review (1997), 134; ‘Biometrics: Applications, Challenges and the Future’ by Gang Wei & Dongge Li in Privacy and Technologies of Identity: A Cross-Disciplinary Conversation, (New York: Springer 2006) edited by Katherine Strandburg & Daniela Raicu; and the Ontario Privacy Commissioner's 1999 Consumer Biometric Applications discussion paper (PDF);

DNA

For genetic information see in particular the Australian Law Reform Commission's 2003 Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96) report; Genetic Information: Acquisition, Access and Control (New York: Kluwer 1999) edited by Alison Thompson & Ruth Chadwick; Stored Tissue Samples: Ethical, Legal & Public Policy Implications (Iowa City: Iowa Uni Press 1998) edited by Robert Weir; David Crosby's Protection of Genetic Information: An International Comparison (London: Human Genetics Commission 2000); the 1999 Model Forensic Procedures Bill: DNA Database Provisions Discussion Paper from the Standing Committee of Attorneys-General in Australia and Graeme Laurie's Genetic Privacy: A Challenge to Medico-legal Norms (Cambridge: Cambridge University Press 2002).

The Centre for Genetics & the Law (CGL) in Hobart has a project to map Australian and overseas legislation.

More detailed pointers to works on privacy and genetic data feature here.

Compulsion and coercion

Questions about mandatory registration are highlighted in ‘Recent Changes in the Law of Biometrics’ by Margaret Betzel in 1 I/S: A Journal of Law & Policy for the Information Society (2005), 517-541; ‘Who Needs Special Needs? On The Constitutionality Of Collecting DNA and Other Biometric Data From Detainees’ by David Kay in 34 Journal of Law, Medicine and Ethics (2006), 188-209; ‘The compulsory biometric registration of foreign nationals in the UK: policy justifications and potential breaches of human rights’ by Rhian Beynon in 21(4) Journal of Immigration, Asylum and Nationality Law (2007), 324-333; ‘Biometrics, international migrants and human rights’ by Rebekah Thomas in 7(4) European Journal of Migration and Law (2005), 377-411; the 2003 Duke Law & Technology Review brief 'The Case for National DNA Identification Cards'; 'No Direction Home: Will The Law Keep Pace With Human Tracking Technology to Protect Individual Privacy and Stop Geoslavery?' by William Herbert in 2(2) I/S: A Journal of Law & Policy for the Information Society (2006) and ‘From Wee Waa to Norfolk Island (and beyond?): ‘voluntary’ biometric testing for criminal investigations’ by Nigel Waters in 9 Privacy Law and Policy Reporter (2002), 116-119

Evidence

Evidential debates are apparent in ‘Grandfathering Evidence: Fingerprint Admissibility Rulings from Jennings to Llera Plaza and Back Again’ by Simon Cole in 41(3) American Criminal Law Review (2004), 1189-1276 and his ‘Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate’, in DNA and the Criminal Justice System (Cambridge: MIT Press 2004) edited by David Lazer, ‘The New Forensics: Criminal Justice, False Certainty, And The Second Generation Of Scientific Evidence’ by Erin Murphy in 95 California Law Review (2007), 721-791 and Neil Gerlach's The Genetic Imaginary: DNA in the Canadian Criminal Justice System (Toronto: Uni of Toronto Press 2004).

Privacy

Works on privacy aspects include Malcolm Crompton's thin ‘Biometrics and privacy: the end of the world as we know it or the white knight of privacy’ in 32 Privacy Law and Policy Reporter (2002); 'Cyber crime and biometric authentication - the problem of privacy versus protection of business assets' by Michael Crowley in Proceedings of the 4th Australian Information Security Conference (Perth: Edith Cowan University 2006); ‘The Death of Privacy?’ by Michael Froomkin in 52 Stanford Law Review (2000), 1462-154; ‘Biometrics: privacy’s foe or privacy’s friend?’ by John Woodward in 85(9) Proceedings of the IEEE (1997), 1480-1492; ‘The Voiding of Privacy’ by Felix Stalder in 7(2) Sociological Research Online (2002);

Travel

Legal aspects of use of biometrics in airports and passports are highlighted in ‘E-Passports: ETA August 2006: Recent Changes Provide Additional Protection For Biometric Information Contained In U.S. Electronic Passports’ by Francis Fungsang in 2(3) I/S: A Journal of Law & Policy for the Information Society (2006); ‘The European regulation on biometric passports: legislative procedures, political interactions, legal framework and technical safeguards’ by Gerrit Hornung in 4(3) SCRIPT-ed: A Journal of Law, Technology & Society (2007) (PDF) and his 2004 'Biometric Identity Cards: Technical, Legal, and Policy Issues' (PDF); 'Back to the future? The use of biometrics, its impact on airport security, and how this technology should be governed’ by Eric Haas in 69(2) Journal of Air Law and Commerce (2004), 459-489.

Points of dissent include ‘Complexity and counterterrorism : thinking about biometrics’ by Patrick O’Neil in 28(6) Studies in Conflict and Terrorism (2005), 547-566 and ‘In silico race and the heteronomy of biometric proxies: biometrics in the context of civilian life, border security and counter-terrorism laws’ by Joseph Pugliese in 23 Australian Feminist Law Journal (2005) 1-32.

Other

Other applications are discussed in Robert Jueneman & Richard Robertson, ‘Biometrics and Digital Signatures in Electronic Commerce’, 38 Jurimetrics Journal of Law, Science & Technology (1998), 427-457; ‘The Promise Of A Better Way: Biometric Voter Identification And The Homeless’ by Jennifer Walrath in 14(1) Georgetown Journal on Poverty Law and Policy (2007), 95-114; ‘Identity management and the application of biometric technology’ by Anne Trimmer in 62 Computers and Law (Journal for the Australian & NZ Societies for Computers & the Law) (2005), 13-15; 'Cybercrimes against Consumers: Could Biometric Technology Be the Solution?' by Juline Mills & Sookeun Byun in 10(4) IEEE Internet Computing (2006) 64-71; 'DNA paternity testing: Public perceptions and the influence of gender' by Lyn Turney, Michael Gilding, Christine Critchley, Penelope Shields, Lisa Bakacs & Kerrie-Anne Butler in 1 Australian Journal of Emerging Technologies and Society (2003), 1-17

Practicalities, anxieties and ethics are discussed in Russell Smith's 2006 ‘Identification systems: a risk assessment framework’, 324 Trends & Issues in Crime and Criminal Justice (Canberra: Australian Institute of Criminology 2006), 1-6; the Royal Canadian Mounted Police Biometric Technologies: An Assessment of Practical Applications (Information Technology Security Report, Lead Agency Publication R2-001) (PDF); 'Biometrics between opacity and transparency' by Serge Gutwirth in 43(1) Ann Ist Super Sanità (2007) 61-65; ‘Ethical practice in the use of biometric identifiers within the EU’ by Annemarie Sprokkereef and Paul de Hert in 3(2) Law, Science and Policy (2007), 177-201; Irma van der Ploeg's 2005 BITE paper Biometric Identification Technologies: Ethical Implications of Informization of the Body; and ‘Whose fingerprints, and with what flavour, would you like today?’ by Dan Svantesson in 18 Privacy Law and Policy Reporter 1 (2003).

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