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15: The Law and Private-Sector Use of Biometrics
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can do with it what they please An argument favoring this approach is that because the technology is still emerging, policymakers should not take any quick regulatory action that might impede its deployment After all, there are no secondary markets for fingerprint templates or hand geometry patterns (yet)
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Self-regulation Based on voluntary industry codes, private-sector entities using biometrics can best determine their own privacy policies and practices Raj and Samir Nanavati of the International Biometric Group have offered a comprehensive BioPrivacy s Best Practices to help institutions determine what steps to take to ensure that biometric deployments do not intrude on individual privacy30 Currently, private actors (such as companies or organizations) possessing biometric identification information generally follow a nondisclosure policy that is, as part of a strategy of building public acceptance for the technology, they do not disclose this information to third parties This position also has adherents in the International Biometric Industry Association (IBIA), the biometric industry s trade association headquartered in Washington, DC The IBIA also has privacy principles its members are obliged to accept31 However, such nondisclosure policies are completely voluntary Critics contend that biometric identifiers, like other personal information, such as names and addresses for mailing lists, might eventually be considered to be part of the public domain The fear is that the individual will lose ultimate control over all aspects of his biometric identifier Government regulation A presumption that law is needed at the state or federal level Rather than rely on an end-user s promise or industry goodwill, this approach favors privacy protections under the force of law Hybrid A combination or combinations of the above For example, an end user with a biometric application in an unregulated state could do what it pleases with biometric data, while another end user could have a voluntary privacy policy in place, and another end user in a regulated state could be subject to the state law and still have a privacy policy giving greater protection to biometric data than what the law requires
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Biometrics is still relatively too new for the Congress or the various state legislatures to have acted from the standpoint of adopting privacy protections specifically
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Information about the International Biometric Group and its recommended privacy practices is at wwwibgwebcom IBIA Privacy Principles, available at http://wwwibiaorg/privacyhtm
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at private-sector use of the technology In one of the first steps taken toward understanding private-sector applications of biometrics, Congress held hearings on Biometrics and the Future of Money in May 1998 These hearings, before the Subcommittee on Domestic and International Monetary Policy of the Committee on Banking and Financial Services of the US House of Representatives, featured panels of leading technologists as well as policy experts who explained how biometrics can be used for identity assurance and raised law and policy concerns related to biometric use In the aftermath of the terrorist attacks of September 11, 2001, numerous congressional hearings examined the role biometrics could play in improving homeland security For example, on November 5, 2001, Senator John D Rockefeller IV, Chairman of the Senate Aviation Subcommittee, conducted a hearing at West Virginia University in Morgantown, West Virginia The Subcommittee heard from witnesses who discussed, among other things, uses of biometrics in civil aviation Congress has also enacted legislation requiring government to act to develop this technology to help secure our borders For example, the USA PATRIOT Act requires, among other things, that the Attorney General and the Secretary of State jointly, through NIST, develop and certify by January 26, 2003, a technology standard including appropriate biometric identifier standards that can be used to help ensure that a person has not received a visa under an alias name
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One of the first state attempts to provide privacy protection for private-sector use of biometrics occurred in California In 1998, Assembly Member Kevin Murray, with the support of the California Banker s Association as well as the Center for Law in the Public Interest, introduced legislation (known as AB 50) in the California State Assembly to promote the responsible use of biometric identifiers to prevent identity theft while preserving the security of consumer information The bill s key provisions included:
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