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the flexibility provided for in the directive so long as the US is engaged in good faith negotiations with the EU American Ambassador David L Aaron, the former Undersecretary for International Trade, has explained the transnational reach of the EU privacy law by noting that the Directive allows transfer of personally identifiable data to third countries only if they provide an adequate level of privacy protection50 Identifying American concerns about the directive, Ambassador Aaron and others have noted that because the United States relies largely on a sectoral and self-regulatory, rather than legislative, approach to privacy protection, many US organizations have been uncertain about the impact of the adequacy standard on personal data transfers from the EU to the US
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The directive has the potential to be far-reaching For example, the EU personal data policies provide for the following:
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Data must be processed fairly and lawfully
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Purpose limitation Data must be collected and possessed for specified, legitimate purposes and kept no longer than necessary to fulfill the stated purpose Data quality Data must be accurate and up to date Data transfers Article 25 of the directive restricts authorized users of personal information from transferring that information to third parties without the permission of the individual providing the data, or data subject In the case of data transfers across national boundaries, the directive prohibits data transfers outright to any country lacking an adequate level of protection, as determined by the EU Article 25 is a major source of US concern Special protection for sensitive data This provision requires restrictions on, and special government scrutiny of, data collection and processing activities of information identifying racial or ethnic origin, political opinions, religious or philosophical beliefs or concerning health or sex life Under the directive, such data collection or processing is generally forbidden outright
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David L Aaron, The EU Data Protection Directive: Implications for the US Privacy Debate, Testimony before the Subcommittee on Commerce, Trade, and Consumer Protection, US House of Representatives, March 8, 2001, available at http://energycommercehousegov/107/ hearings/03082001Hearing49/Aaron102htm
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13: Legal Considerations of Government Use of Biometrics
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Government authority Each EU member state must create an independent public authority to supervise personal data protection The EU will oversee the directive s implementation and will engage in EU-level review of its provisions Data controllers Organizations processing data must appoint a data controller responsible for all data processing, who must register with government authorities Individual redress A data subject must have the right to access information about himself, correct or block inaccuracies, and object to information s use
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Article 1 of the directive requires member states to protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data 51 In essence, the EU has made privacy a fundamental human right
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The directive defines personal data as any information relating to an identified or identifiable natural person An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural, or social identity While the word, biometric is not specifically cited in the text, biometric identifiers will likely be implicated by the directive s definition of personal data
Individuals and businesses using biometrics will inevitably be using these systems in a global environment When operating in an overseas environment, end users obviously do not want to do things that are in conflict with foreign law Once an end user entity determines exactly what type of biometric application it wants to deploy in an overseas location, therefore, it must also take into account any applicable local laws to determine how best to proceed to ensure compliance with these laws A case-by-case analysis of each country s law and whether or how it would affect the use of biometrics is beyond the scope of this book and requires competent legal counsel An excellent starting point for learning about foreign privacy laws may be found in Privacy & Human Rights 2002 For more information go to http://wwwprivacyinternationalorg/survey/phr2002/
Article 1, EU Data Protection Directive, or Directive 96/46/EC; see Article 1 of The European Union Privacy Directive, Directive 96/46/EC
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