qr code generator c# library 15: The Law and Private-Sector Use of Biometrics in Software

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15: The Law and Private-Sector Use of Biometrics
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legal scholarship on privacy and examined the right to privacy with respect to government use of biometrics, and 14 s case study narrowly focused on the extent to which we have a right to privacy in the face we show in public
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When it comes to private-sector actions, the Constitution embodies what is essentially a laissez-faire, or hands-off spirit With respect to the conduct of private individuals, the Supreme Court has not found a constitutional privacy right in personal information given voluntarily by an individual to private parties This reluctance to find such a privacy right bears on private-sector use of biometrics because biometric identifiers may be categorized as personal information that an individual, or the data subject, gives voluntarily to private parties, or the data collectors Generally, as a matter of law, a private party in possession of information has the right to disclose it Two landmark cases demonstrate the Supreme Court s view In Smith v Maryland, decided in 1979, the defendant claimed that information in the form of telephone numbers he dialed from his home telephone (which is known as a pen register) could not be turned over to the police without a search warrant Mr Smith desperately wanted his pen register records excluded as evidence because they helped establish that he had been stalking a woman Rejecting this argument, the Supreme Court noted that it consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties 28 United States v Miller, decided in 1976, involved a bootlegger s private financial records, which his bank gave to United States Treasury agents Mr Miller, the bootlegger, failed in his attempt to have this evidence excluded He wanted his financial records excluded as evidence because the government could use these records to prove that Miller was evading taxes The Supreme Court found that the bootlegger had no expectation of privacy in the bank records, reasoning that The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government 29 The records could not therefore be considered confidential communications because Miller had voluntarily conveyed them to the bank in the ordinary course of business Analogizing to the private-sector s use of biometrics, the Supreme Court s reasoning in Smith and Miller suggests that the Court would be reluctant to find a reasonable expectation of privacy in biometric identification information provided in connection with a private-sector activity Rather, the Court would likely view the biometric identification information as having been voluntarily provided by
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Smith v Maryland, 442 US 735 (1979) United States v Miller, 425 US 435 (1976)
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the individual to another party in the ordinary course of business Thus, the Court would find that, just like the depositor, the individual takes the risk by providing his biometric identification information to another, that the information will be conveyed by that private party to others, including the government Despite the Court s likely reluctance to expand individual privacy protections related to private-sector use of biometrics, Congress can have the ultimate word Again, Miller is instructive Following the Miller decision, Congress, in 1976, passed the Right to Financial Privacy Act (12 USC 3401 et seq), which established procedural requirements for financial institutions when disclosing information to the government Thus, the refusal of the Supreme Court to find a Constitutionally mandated privacy right does not as a practical matter end the debate Congress is free to act by passing legislation to protect information privacy Similarly, the states are also free to act by providing for individual privacy protections For private-sector intrusions into privacy, the common-law, through its doctrines of contract, tort and property, has, in varying degrees, attempted to provide certain protections for the individual However, the law has not used these doctrines to protect individual information in private-sector databases Accordingly, the private-sector enjoys great leeway as far as what it can do with an individual s information As Marc Rotenberg, the executive director of the Electronic Privacy Information Center, and Emilio Cividanes, a privacy attorney, have concluded in The Law of Information Privacy: Case and Commentary, in 1997: Except in isolated categories of data, an individual has nothing to say about the use of information that he has given about himself or that has been collected about him In particular, an organization can acquire information for one purpose and use it for anothergenerally the private sector is not legislatively constrained
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As discussed in the Law as an Enabler for Private-Sector Use of Biometrics section earlier in this chapter, Congress and the state legislatures have taken positive steps to regulate private-sector use of biometrics The greatest and most impressive part of this regulation at both the federal and state levels has been to encourage the use of electronic signatures to include biometrics As for privacy policy, we discuss the options next
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In balancing the privacy concerns with the benefits biometrics provide in private-sector applications, several options exist for our policymakers These approaches include the following:
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Laissez-faire No government regulation is needed, that is Hands-off! If it ain t broke, don t fix it This approach would treat biometric data like any other personal information, which generally means that data collectors
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