Biometrics in Software

Creation Code 128 in Software Biometrics

restrict the wearing of the headgear required by his religious beliefs The Court found that the First Amendment does not require the military to accommodate such practices as wearing a yarmulke in the face of the military s view that such practices would detract from the uniformity sought by dress regulations In his majority opinion, then Justice Rehnquist explained that, when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest 35 Congress reacted to the Goldman decision by passing a statute effectively eviscerating the Court s ruling In 1987, Congress amended the US Code to permit a member of the armed forces to wear an item of religious apparel while wearing the uniform of the member s armed force, with two exceptions: when wearing of the item would interfere with the performance of the member s military duties, or if the item of apparel is not neat and conservative 36 In 1990, the Supreme Court decided another important case involving religious beliefs In Employment Division, Department of Human Resources of Oregon v Smith (referred to as Smith), Alfred Smith and Galen Black brought suit against the Oregon State Employment Division after it refused their claims for unemployment compensation Their employer had discharged them from their jobs on misconduct grounds because they had ingested peyote, a hallucinogen, as part of the sacramental observances of their Native American religion Under Oregon law, peyote is a controlled substance and thus prohibited In Smith, the Supreme Court held that the First Amendment s free exercise of religion clause does not require exemption from a religiously neutral law for those whose religious beliefs preclude them from complying with the law Smith holds that the legislature is free, however, to grant religious exemptions to the neutral laws if it so chooses Thus, in Smith, the First Amendment s free exercise clause did not prohibit the application of Oregon state drug laws to use of peyote for religious purposes However, were it so inclined, the Oregon state legislature could create a religious exemption37 Lessons Learned We can draw several broad lessons from Goldman First, the congressional reaction to the Goldman decision demonstrates that Congress is not unwilling to require the military, or other government agencies, to make special allowances for religious objections Second, a government agency, as an institution,

Goldman, 475 US at 507 (citation omitted) See 10 USC 774 (1999) Employment Division, Department of Human Resources of Oregon v Smith, 494 US 889 (1990)

will likely heed directions from Congress A lesson from Smith reinforces a lesson from Goldman: While a government agency s requirement for participating in biometric applications, just like the Oregon law prohibiting peyote, will be religiously neutral, the Congress, like the Oregon state legislature, could grant, if it were so inclined, religious exemptions to the neutral requirement In this sense, government agencies considering the use of biometrics would be wise to have an established policy in place to deal with religious practices

In examining the privacy rights recognized by the Constitution, we see that informational privacy is the one most likely implicated by government-mandated use of biometrics The Court s decision in Whalen v Roe provides a framework for how a future court might address such issues We have also examined physical and decisional privacy as well as how the court would deal with religious-based objections to biometrics With this constitutional basis thus established, we next have to examine statutory and administrative law protections Congress is free to regulate government-mandated use of biometrics Congress has already passed comprehensive legislation, known as the Privacy Act, affecting how US government agencies must protect personal information This act also applies to biometric records For this reason, we next examine the Privacy Act in detail

The Privacy Act of 1974 (codified at 5 USC 552a, as amended) regulates the collection, maintenance, use and dissemination of personal information by federal government agencies In broad terms, the Privacy Act gives certain rights to the data subject, or the individual who provides personal information, and places certain responsibilities on the data collector, or the agency collecting the personal information The Privacy Act balances a federal agency s need to collect, use, and disseminate information about individuals with the privacy rights of those individuals In particular, the act tries to protect the individual from unwarranted invasions of privacy stemming from a federal agency s collection, maintenance, use and dissemination of personal information about the individual There are several things the Privacy Act does not do For example, the Privacy Act does not regulate the collection, maintenance, use, and dissemination of personal information by state and local government agencies The Privacy Act does not regulate personal information held by private sector entities The Privacy Act does not apply when the individual, or data subject, is not a US citizen or an alien lawfully admitted for permanent residence