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A prohibition against selling, exchanging, or otherwise providing biometric identification databases to third parties A mandate that electronic storage of biometric identifiers be carried out in the same manner as a company s confidential information A prohibition on recording someone s voice for biometric identification purposes without their consent A prohibition against the discriminatory use of biometric identifiers
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Murray s proposed legislation drew opposition from the ACLU, which felt that it did not provide adequate protection to consumers biometric data Consumer activist Ralph Nader saw the bill as part of the banking industry s efforts to invade
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15: The Law and Private-Sector Use of Biometrics
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consumers privacy through fingerprinting customers The legislation died in the California State Senate More recently, action has shifted from the West Coast to the East Coast, specifically New Jersey Introduced by Assemblywoman Joan M Quigley, the Biometric Identifier Privacy Act (Bill No A2448) provides guidelines for the use and distribution of biometric identifiers and establishes civil penalties for the misuse of biometric information Specifically, the legislation prohibits a person or government agency that possesses biometric data to sell, lease, transfer, or disclose the information unless the following criteria have been met:
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The individual to whom the biometric data belongs consents to the sale or transfer The sale or transfer completes a financial transaction requested or authorized by the individual The sale or transfer is required or permitted by federal or state law The sale or transfer is made for law enforcement purposes
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In addition, the bill requires that the entity storing the biometric information must protect that data in a manner similar to other confidential information and provides for civil penalties for each violation The civil penalty provision is not trivial; it would apply to each violation of the act and would not be more than $25,000 for each violation On September 12, 2002, the Assembly Homeland Security and State Preparedness Committee approved the bill On September 23, 2002, the bill passed 75-0 in the New Jersey Assembly As of this writing, it is pending before the state Senate Judiciary Committee
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Both the California and New Jersey state legislative approaches adopted a privacy enhancing biometric blueprint based on what is known as a Code of Fair Information Practices (CFIP) Such a CFIP-based approach merits consideration because it is arguably an effective way to balance privacy concerns with the benefits of biometrics As a bedrock premise, a CFIP establishes rights for data subjects and places responsibilities on the data collectors
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The CFIP consists of five principles: notice, access, correction mechanism, informed consent, and reliability/safeguarding The CFIP, as the name implies, is
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Eric Hellweg, The Security of You, Business 20, November 1998, available at http://wwwbusiness2com/articles/mag/print/0,1643,12778,FFhtml
Biometrics
not unique to biometrics but can apply anytime information is at stake Willis Ware, a leading information privacy scholar at RAND, and public servants from the then Department of Health, Education, and Welfare (including David F H Martin who first coined the phrase) came up with the CFIP approach in 1973 The CFIP-based biometric blueprint for private-sector use should consist of these same five basic principles, along with optional wording, to include:
Notice The capture of biometric identification information in the privatesector must be accompanied by prominent notice A more privacy-protective principle would prohibit the clandestine capture of biometric identification information in the private sector; no secret databases should exist Access The individual (or data subject) has the right to access his information in the database Specifically, the individual must be able to find out if his biometric identification information is in the database and how the data collector is using it Accordingly, the data collector would be required to disclose its privacy practices Correction mechanism The individual must be able to correct or make changes to any biometric identification information in the database Since one of the technical advantages of biometrics is that they are based on physical characteristics or personal traits that rarely change over time, this principle would likely not be called into play too often Informed consent Before any information can be disclosed to third parties, the individual must consent The individual must voluntarily and knowingly provide his biometric identification information to the data collector in the primary market Once in the possession of the data collector, this information would then be governed by a use limitation principle, which means that the individual has consented that the information she provided would be used in the primary market for a purpose defined by the data collector and known to the individual The individual must knowingly consent to any exchange, such as buying and selling of his biometric identification information, before it could be traded in a secondary market Reasonable exceptions can be accommodated as appropriate for academic research, national security, and law enforcement Reliability/safeguarding The organization responsible for the database must guarantee the reliability of the data and safeguard the information Any data collector that collects and stores biometric identification information must guarantee the reliability of the data for its intended use and must take precautions to safeguard the data At its most basic level, appropriate managerial and technical controls must be used to protect the confidentiality and integrity of the information The controls would include making the database and the computer system
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