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452 September 17, 2002

Human Bar Code

Monitoring Biometric Technologies in a
Free Society
by Clyde Wayne Crews Jr.

Executive Summary

Biometric technologies such as voice prints, blur the distinction between public and private
retina and iris scanners, face-recognition cam- databases, and will undercut a presumptive right
eras, digitized fingerprints, and even implantable to maintain anonymity. The ID would devolve
chips containing personal information can ben- into a general law enforcement tool having noth-
efit us. Such technologies will find their way into ing to do with response to terrorism.
cell phones and mobile computers, car doors, A less sweeping biometric database would con-
doorknobs, and office keys. They can bolster tain criminals and suspects but not the general
online commerce, locate a missing child, and population. Individuals would be observed, but
transmit medical information to doctors. They presumably only to see if they matched a face
promise increased security by preventing identity already in the database.
theft. Allegedly, the collection of information per-
But no one wants to be treated like a human taining to criminals will have already taken place
bar code by the authorities. by way of proper legal procedures. Nevertheless,
What are the benefits and concerns surround- many observers doubt that governments can be
ing the further deployment of biometric identifi- trusted to discard incidental data collected on
cation techniques into our lives? Do they promise innocents. Because the deliberate identification
new levels of physical security and secure com- and tracking of individuals using biometrics can
merce—or do they threaten fundamental values of constitute an unreasonable search, stringent
privacy and liberty? What are the distinctions Fourth Amendment safeguards are critical.
between governmental, commercial, and private The challenge of the biometric future is to
use of biometric technologies? prevent mandatory national IDs, ensure Fourth
Biometrics range from completely involun- Amendment protections with respect to public
tary to potentially involuntary to completely vol- surveillance, and avoid the blurring of public and
untary—in decreasing order of risk. The most private databases. Private industry must generate
pressing threat to liberty is an all-inclusive data- its own information, for purposes limited by
base mandated by government—a national iden- consumer choice and consumer rejection.
tification card with biometric identifiers. Such Privacy, security, liberty, and even authentication
an ID will increase unwelcome surveillance, will technology itself will be all the better for it.
Clyde Wayne Crews Jr. is director of technology studies at the Cato Institute.
Do they promise threaten fundamental values of privacy and
Introduction even liberty itself? What are the distinctions
new levels between governmental and commercial
of physical You can make the country complete- deployment of biometric technologies, and
ly safe. All you have to do is make it a what policy concerns arise when private com-
security in the police state. panies profit from selling biometric tools to
“homeland” and —James Gilmore1 law enforcement or operating the equip-
more secure ment? How are we to devise principles that
Controversy continues in Washington can help identify proper and improper uses
commerce, or do over whether the technology industry should of what has potential to be both one of the
they threaten support Internet privacy legislation to deal most promising and one of the most perilous
with unwanted marketing online. technologies today?
fundamental But that debate has been overshadowed On the positive side, some emphasize the
values of privacy by the rise of public surveillance technology social benefits of biometrics, such as the
and even and, in particular, biometric technologies. crime-fighting potential of cameras on city
Biometric technologies use individuals’ streets and the terrorist-fighting potential for
liberty itself? unique physical characteristics for purposes surveillance in our cities, airports and other
of tracking or authentication. Biometrics installations. And biometric technologies
gained prominence in 2001 after fans at also have significant potential to benefit us
Super Bowl XXXV were observed by surveil- as individuals, to protect rather than under-
lance cameras and their faces compared to a cut privacy and security in our day-to-day
database of criminals’ faces using face recog- lives. Better at authentication than the pass-
nition technology. That event came to be words that dominate today, biometrics can
popularly called the “Snooper Bowl.”2 And facilitate online commerce by helping us
after the terrorist attacks in New York and securely manage financial records and online
Washington, the idea of government-issued transactions.
national ID cards containing some form of The technologies will find their way into
biometric identifying information has been car doors, doorknobs, and office keys. They’ll
the subject of fierce debate. authenticate use of our cell phones and per-
Along with the notorious face recognition sonal digital assistants and enable verifica-
cameras in use at the Super Bowl, some air- tion procedures to access medical informa-
ports, and numerous city streets and other tion. Implanted microchips have been used
public places, biometric technologies also to help track pets for years.4 Over time and
include retina or iris scanners, digitized fin- with social acceptance, such information-car-
gerprints and handprints, voice prints, and rying devices will help a parent find a lost
even implantable rice-sized, radio frequency child, or even relay information about that
chips coded with personal information that same child to doctors. To the extent our
can be displayed by a scanner. Even the descendants embrace the technology,
prospect of “brain prints” to identify bad implantation of scannable biometric chips
actors is being seriously discussed.3 Some see within our bodies may become more accept-
widespread deployment of biometric surveil- ed and practiced, as has already been done to
lance as a welcome development in a vulner- a limited extent for Alzheimer’s patients.5 As
able America, while others fear it. Paul Saffo of the Institute for the Future put
What are the benefits and concerns sur- it: “The computer has jumped off our desk-
rounding the further deployment of biomet- tops and it is insinuating itself into every cor-
ric identification techniques into various ner of our lives. Now it’s finding its way into
facets of American life? Do they promise new our bodies.”6
levels of physical security in the “homeland” Over a much longer time frame, biometrics
and more secure commerce, or do they are expected to help enable ubiquitous com-

puting, or eventual (so the theory goes) seam- Government interference with the evolu-
less interaction between people and machines, tion of biometrics or, worse, domination of
so that computers and other machines are the technology, changes the picture dramati-
aware of our presence and can interact with us. cally. Governments can use the technology to
In the even longer run, technologies like face restrain us and violate our liberty and priva-
recognition will be the means by which robots cy, a power the market lacks unless the lines
can respond and react to us.7 get blurred inappropriately. Governmental
But biometric technologies can clearly mandates that require individuals to submit
threaten our liberties as well. Not many want to to inclusion in databases can give the entire
be tracked by the authorities, or treated like biometrics industry a black eye and turn soci-
human bar code just because technology has ety against the technology, sacrificing the
made that easy. Possible applications of bio- promises that biometrics offers. Information
metric technologies range from an involuntary acquired through the commercial process
“everybody included” database—exemplified by must be kept separate from that extracted
the calls today for a government-required through government mandates. (Similarly,
national ID card—to privately owned and man- private companies should not have access to
aged “members only” biometric systems that information that government has forced
contain data only on individuals who have gar- individuals to relinquish.) As the debate over Government
nered clearance for a particular private applica- biometrics proceeds, a clear distinction must mandates
tion. Political liberty is threatened by involun- be made between commercial privacy and offi- that require
tary, government-mandated databases but not cial privacy; privacy in a civil or social setting
by private applications as long as government is different from political privacy. As Ayn Rand individuals to sub-
and private data are kept separate. remarked: “Civilization is the progress mit to inclusion in
Policymakers must recognize the relevant dis- toward a society of privacy. The savage’s
tinctions to make rational policy decisions with whole existence is public, ruled by the laws of databases can
respect to the inevitable public and private use his tribe. Civilization is the process of setting give the entire
of biometric identification systems in the years man free from men.”9 biometrics indus-
to come. Technology has the potential to bolster
privacy and even anonymity, but to do so, the try a black eye.
deployment of technology must remain a
Government vs. Private private-sector phenomenon, free to benefit
Databases and Their Risks from market improvements. The best, most
secure IDs will be those whose applications
to Liberty are driven by consumer demand and interac-
In private hands, biometric technologies tions among individuals and businesses
enlarge our horizons. They expand the possibil- rather than implemented by government fiat.
ities of a market economy by bolstering securi- To the extent that private companies encour-
ty in private transactions ranging from face-to- age the blurring between governmental and
face authentication to long-distance commerce. market databases, they ensure the industry’s
Some, however, regard the rise of private use of regulation and politicization.
biometrics as an invasion of privacy. And, Technology writer Rob Fixmer has noted
indeed, there is a danger of law enforcement the distinction between government IDs and
gaining inappropriate or even routine access to commercial ones:
private databases like bank, financial, medical,
and travel records.8 In a voluntary market econ- A commercial digital ID might be a
omy, however—one not characterized by gov- great convenience in many ways. A
ernment intrusions on privately generated per- combination license, passport, Social
sonal information––biometrics can increase Security number, credit card, debit
individual liberty. card and door key—an entire, bulging

wallet on a single piece of data- The most pressing threat to privacy and
impregnated plastic. But in Western individual liberty is an all-inclusive involun-
democracies, where George Orwell’s tary database—one mandated by government
1984 is taught with apocalyptic zeal, in which everyone is forced to participate.
the notion of an all-knowing govern- This kind of database corresponds to pro-
ment is terrifying. In a world commit- posed national ID card systems with biomet-
ted to never forgetting victims of Nazi ric identifiers. The identifiers would likely
concentration camps, the grotesque take the form of mathematical representa-
image of numbers tattooed on tions of one’s face, iris, fingerprints, and so
human beings has forever equated forth, encoded into a magnetic strip or chip.
forced identification with sheer evil. Oracle Corporation CEO Larry Ellison, a
I doubt those views changed on prominent early promoter of the idea after
September 11. Let the private sector September 11, offered free software to help
identify us in ways that expand our establish and maintain integrated govern-
options as consumers, while protect- mental ID databases. (Ellison claims it’s not
ing our assets. Give law enforcement such a leap since the government already
agencies access to those identities on a maintains extensive databases on all of us.)12
strictly controlled basis.10 Such proposals were initially rejected by the
Bush administration but received wide con-
There will inevitably be some blending of sideration by some members of Congress;
public and private purposes. It is certainly the and more recently Homeland Security
case that tax dollars will be saved by having Advisor Tom Ridge indicated that the
private industry with specialized expertise administration is investigating linking
develop the technologies that the government nationwide driver’s license databases. 13 That
uses for its purposes, just as the Defense move comes on the heels of Congress having
Department benefits from contracting with already asked the Department of
private companies to build weapons. To keep Transportation to investigate the idea of
government-mandated and market-devel- linking state driver’s license databases. 14 The
oped databases separate over the coming leading institutional backer of the idea is the
years, one principle might be that private American Association of Motor Vehicle
companies not be permitted to access data Administrators, which recommended
that is collected by government mandate. streamlining driver’s license data across the
Otherwise the biometrics industry will be one states and even seeks $100 million from
Private companies defined by government regulation rather Congress to help foot the bill.15 (Yet even in
than market demand. the face of government funding the AAMVA
might not be With that bit of distinction between the denies that the proposal would lead to a
permitted to appropriateness of government-mandated national ID.)
access data that is and private databases, it is apparent that the Other supporters of national IDs include
deployment of biometrics technologies poses Sen. Dianne Feinstein (D-Calif.) and Rep.
collected by a range of threats against which citizens must Nancy L. Johnson (R-Conn.). The leading leg-
government stand guard. islative vehicle appears to be a bipartisan bill
(H.R. 4633) introduced by Virginia Reps.
mandate. High Risk: Government-Mandated James Moran (D) and Tom Davis (R). Their
Database of All Citizens bill would establish driver’s license and ID
standards that incorporate biometrics and
We don’t automatically have to call it require “standards to ensure interoperability
a national ID card, that’s a radioactive and the ability to store multiple applications
term. created by government agencies and private
—Rep. Jane Harman (D-Calif.)11 entities.”16 Yet, “this is not a national data file,”

says Moran.17 Note the blending of public and Eastern noncitizens receiving training at U.S. Even a
private purposes. flight schools;23 extraordinarily lax personnel “voluntary” ID
background checks at airports; intelligence
No Such Thing as a “Voluntary” about proposed attacks-by-airliner not being would contain
National ID Card taken seriously by FBI headquarters; and poor underlying
Most proponents claim that a national ID awareness of the whereabouts and status of
system could be voluntary. But it doesn’t noncitizens, embarrassingly demonstrated
seem possible to sustain a voluntary system when new Visa applications from the elements.
given the incentives that would be brought to Immigration and Naturalization Service
bear: terrorists would not volunteer to sign arrived for terrorists six months to the day after
up, as Cato Institute constitutional studies their deeds. Also criticized had been a lack of
scholar Robert A. Levy argued, and the “pre- adequate communication between domestic
dictable failure of a voluntary system will law enforcement and foreign intelligence agen-
lead to compulsory IDs.”18 And even a “vol- cies, a fault that lies with Congress since the
untary” ID would contain underlying com- split of duties between the FBI and CIA is leg-
pulsory elements: part of the driver’s license islatively mandated.24 These are the sorts of
push by the AAMVA is to link Immigration matters that need attention before sacrificing
and Naturalization Service data as well as liberties. With respect to terrorism, government
Social Security and Bureau of Vital Statistics massively failed at its core mission—protecting
data.19 That in itself exposes the critical prob- citizens.25 Yet its response has been to demand
lem with government-mandated IDs: by that citizens give up ever more of their freedom
incorporating information collected across in the name of security.
agencies, the AAMVA’s proposed ID starts Moreover, as Timothy Lynch of the Cato
off as being fundamentally compulsory since Institute has argued, “The terrorists will very
it would ride atop already-administered easily be able to get around a national ID
mandatory databases. card system. They can bribe people who issue
The motive behind the recent interest in a the cards, they can bribe people who check
national ID is apparent, even understand- the cards, and . . . recruit young men in their
able: backers claim that such a system might early 20s . . . who have not yet come to the
have thwarted the attacks of September 11. attention of our law enforcement and intelli-
Moran and Davis hail from the very state in gence agencies.”26
which some of the terrorists had received Nonetheless, Rep. Jane Harman (D-Calif.)
phony driver’s licenses and likely feel a com- has claimed that public objections to a
pelling need to respond. Others note that the national ID card will vanish if there’s a sec-
attacks might have been thwarted if certain ond wave of attacks.27 She’s probably right: a
participants, who were stopped for traffic poll by the University of Michigan’s Institute
violations prior to September 11, had been for Social Research found that 7 in 10
forced to produce some kind of a national, Americans would give up some civil liberties
biometric ID.20 for improved security.28 However, this is
Of course, it is not necessarily the case that where principled political leadership is called
more surveillance and tracking of ordinary citi- for: If liberty is a Constitutional right, the
zens would improve security. It is not apparent power of the majority is limited, and majori-
that had the USA PATRIOT Act21 been in place ties—especially temporary majorities—
the attacks would have been averted.22 Likewise, shouldn’t be authorized to take away the
it is not apparent that a national ID card could legitimate right of innocent individuals to be
have averted them. Rather, still-unresolved free of invasive government ID systems.
intelligence failures seem to have been the real
problem. Revelations poured forth since the “Show Us Your Papers”
attacks: advance knowledge about Middle Many critics of national IDs, such as Marc

Rotenberg of the Electronic Privacy seem to have missed the signs leading to
Information Center, have noted that manda- September 11.)
tory IDs would lead to many new checkpoints Given bureaucratic mission creep, official
in society that simply don’t exist now.29 applications of a national ID card would like-
Everyone would be included in a database ly expand to cover such things as underage
thanks to a government mandate and would drinking, petty crime, fighting the drug war,
eventually be trackable anywhere. That capa- tracking deadbeat dads and welfare cheats,
bility would lead even private entities to ask registering guns, and so forth. The ID would
for ID everywhere: at the Cineplex, the concert, morph into a general law enforcement tool
the stadium, Disneyland, and so on. having nothing to do with the terrorism that
Governmental abuse is most worrisome. presumably prompted its creation. (For
Columnist William Safire called the national example, where face recognition systems are
ID a “discredit” card: widely deployed in the U.K., low-level crimi-
nals rather than terrorists are the main tar-
The universal use and likely abuse of get.32) In a 1995 Cato Institute study, the
the national ID—a discredit card—will authors described how a national ID system
trigger questions like: When did you would impinge on privacy, having been
Given an begin subscribing to these publica- invoked as a tool to monitor illegal immigra-
all-encompassing tions and why were you visiting that tion, manage a national health care program,
database and spicy or seditious Web site? Why are and execute background checks. 33 Uses can
you afraid to show us your papers on go well beyond any national security justifi-
easily scannable demand? Why are you paying cash? cation, but pressures created by an official ID
cards or implants, What do you have to hide? . . . Beware: card would likely prove irresistible.
It is not just an efficient little card to Unfortunately, the proposed House legisla-
it will no longer speed you through lines faster or to tion (H.R. 4633) on driver’s license modern-
be “show us your buy you sure-fire protection from sui- ization puts to rest any notion that the cards
papers”: one’s cide bombers. A national ID card would be limited in scope and confined to nar-
would be a ticket to the loss of much rowly prescribed governmental interests. The
vital statistics will of your personal freedom. Its size bill requires that chips be capable of storing
be readily could then be reduced for implanta- not just fingerprints but other data like med-
tion under the skin in the back of ical information and credit card numbers.34
observable by the your neck.30 The impulse for private sector businesses to
authorities. piggyback on such an ID would be irresistible,
Such implantation is the ultimate expres- much like the widespread use of the Social
sion of the “big brother” scenario that scares Security number by private entities. If Social
so many. And given an all-encompassing Security had never existed (or perhaps if it
database and easily scannable cards or were to become fully privatized and optional),
implants, it will no longer be “show us your no government-generated numbers would
papers”: one’s vital statistics will be readily exist for the private sector to exploit. That fact
observable by the authorities. should be remembered with respect to inte-
The Progressive Policy Institute down- grated national databases. Rather than allow
plays such fears, noting that smart cards can the private sector access to new (coercively
make it easier to catch abusers of the card, extracted) data on individuals, policymakers
that they will “make it easier to create a digi- should move in the opposite direction. The
tal paper trail on government employees who private sector would have to come up with its
access your data.”31 (In that case, however, a own alternatives anyway if reformers succeed-
better alternative may be to focus surveil- ed in privatizing Social Security. (Indeed, per-
lance on government employees, particularly haps even prospectively restricting private sec-
since intelligence failures by such employees tor use of the Social Security number in favor

of prodding the private sector to develop its In [a] recent statement . . . the Court invalidat-
own alternatives makes sense, but that’s a bat- ed an Ohio ordinance requiring the authors of
tle for another day.) campaign leaflets to identify themselves.”37 In
2002, the Court struck down an ordinance
An Unnecessary Loss of Anonymity requiring Jehovah’s Witnesses and other door-
As the government’s surveillance of citizens to-door canvassers to carry written identifica-
is made easier, the effect on political speech tion permits.38 Proliferation of forced identifi-
and anonymity can become oppressive and cation facilitated by a government mandated
stunting. The Electronic Frontier ID systems undermines the means of self-
Foundation’s Lee Tien argues that “perfect maintained privacy, and even of one’s option
surveillance, even without deliberate abuse, of “starting over” in life. Short of engaging in
tends to chill political, artistic, and scientific fraud or harming others, an individual’s pre-
activity.”35 Maintaining citizens’ protections senting various faces to the world in different
against unreasonable monitoring is crucial in contexts is legitimate.
a free society for political purposes; While people will gladly give up informa-
Undermining anonymity can discourage legit- tion about themselves in exchange for ser-
imate civil disobedience. As Robert Levy noted vices in the marketplace, those very markets,
in a response to a claim by Alan Dershowitz albeit not perfect ones, are the mechanisms
that no citizens’ right to be anonymous is that sustain the possibility of retracting that
“hinted at in the Constitution”: information or modifying it in the course of
social give and take. Entrepreneurs, such as
That turns the Constitution on its those engaged in the business of facilitating
head. The Ninth Amendment tells us online commerce, have been struggling for
we have an untold number of rights years to enhance privacy assurances for indi-
that are not enumerated in the viduals. Washington presumably supports
Constitution. The question is not such efforts in principle; legislators have
whether we have a right to anonymi- introduced a number of bills to allegedly pro-
ty, but whether government has the tect online privacy. 39 Particularly in an era in
power to take it away. . . . To be sure, which the Internet can facilitate anonymous
the right to anonymity is not speech, and in which businesses are develop-
absolute. But before stampeding ing tools whereby individuals can shop
toward a national ID, we should lis- anonymously, a national ID would represent
ten to Justice William O. Douglas, a bizarre rejection by the government of its
who cautioned a half-century ago: own alleged commitment to privacy. As government
“To be let alone is indeed the begin- The legitimate role of a government in a
ning of all freedom.”36 free society is properly limited to those func- surveillance of
tions necessary to protect rights. citizens is made
While there is no guaranteed “right” to Governments must be monitored by citizens easier, the effect
anonymity in one’s public actions, private rather than the other way around. (That of
property rights are the means by which people course is the meaning of the famous phrase, on political
have the ability to protect their anonymity. “Eternal vigilance is the price of liberty.”) If speech and
Citizens have the right to legitimate, peaceful government is bloated and engaging in func-
civil disobedience and communication using tions that are outside its proper role and
anonymity can
their own property and resources. Anonymity amassing data on citizens besides, it has plain- become
and pseudononymity are “cornerstones of free ly overstepped its bounds. But if it does these oppressive and
speech,” as noted by attorney Jonathan things while bolstered by a national ID, which
Wallace: “The Supreme Court has consistent- inevitably retards political opposition to gov- stunting.
ly held that anonymous and pseudonymous ernmental power, it becomes much more dif-
speech is protected by the First Amendment. ficult for non-anonymous (and perhaps fear-

The detrimental ful) citizens to rein in that very government though it isn’t supposed to be. Like the Social
impact of a and restore it to its proper function. (This, by Security card, the national ID would become a
the way, is the risk of the “e-Government” de-facto ID not just for governmental purpos-
national ID on movement, the purpose of which is to facili- es but for private ones as well.
individual liberty tate sharing of information across agencies. If Often IDs won’t need to be “national,” but
government is swollen beyond its constitu- rather localized for particular applications. We
will blur public tional limits, then the sharing of information typically want our IDs to contain only that
and private data- about citizens is not appropriate. Government information we choose to release for limited
bases, faciliate should not be “efficient” at roles that it should purposes, and a mandatory national ID would
not be performing in the first place.) diminish that control. An ID that functions as
unwelcome ID cards are the mark of an overgrown, aspir- an office key, for example, may not need to be
surveillance, and ing, government, not a limited one. The case for part of a database containing bank records,
undercut a pre- systematically tracking the populace has yet to be medical records, Social Security payment his-
made. A proper, limited government should have tory, or one’s last will and testament. Then
sumptive right to no means of assembling a national, integrated again, in the course of things, consolidating
anonymity. database on innocent citizens. certain categories of information may be per-
A national ID’s detrimental impact on fectly appropriate. The point is we don’t know
individual liberty is apparent. To recap: it is ahead of time, and requiring a premature con-
involuntary, it will blur public and private solidation or creating a government ID that
databases. facilitate increased unwelcome makes the pooling irresistible is unwarranted.
surveillance, and undercut a presumptive Moreover, while ID proponents hold that
right to anonymity. But a national ID poses there would supposedly be “multilevel access
another, albeit more practical, problem as so that only the right people get access to the
well: it dampens critical competitive market right information,” author Simson Garfinkel
forces that would otherwise drive improve- notes a “checkered track record” in Europe
ments in authentication technology. where hacking widely used “smart cards” for
free phone calls or satellite TV “is a cottage
Many “National” IDs Are Needed—But industry.”40
Not a Government-Mandated One Boosters of a national ID argue that the
Aside from the national ID’s involuntary ID will prevent identity theft and protect
character and its incompatibility with person- public safety. But national ID cards aren’t
al and political liberty, the potential uses of ID necessary to secure those values; indeed they
technologies are too divergent to seriously can undermine those goals. There appears to
entertain the idea of a single national, govern- be a demand for multiple systems of authen-
ment-sanctioned ID. Few individuals want all tication, depending upon circumstances, and
parties, governmental or not, to have access to commerce does seem to have room for many
all the information that exists about them- IDs whose purposes do not necessarily over-
selves in a central location, as a national ID lap. Combining them all—or prodding such a
card would facilitate and encourage. Having combination—into any sort of national data-
numerous IDs, rather than a single one, can be base would be detrimental to individual
perfectly appropriate in civil society (recall rights, privacy and security.
that individuals may present different faces to For example, a private, nonmandatory ID,
the world in different contexts). Moreover, the such as Microsoft’s Passport verification sys-
requirements of commercial and social society tem, might become widely accepted online
differ from the limited needs of official civic and even national or international in scope. In
and political identification. As noted, a that sense, Passport might very well eventually
national ID would inappropriately blur the qualify as a “national” ID. But that doesn’t cre-
two, just as the Social Security number is often ate an argument for turning such technolo-
used for private identification purposes even gies into an official national identification sys-

tem through government prodding. Sun
Microsystems’s Chris Bergh (who is chief tech- Medium Risk:
nology officer at marketing automation com- Governmental “Bad Guy”
pany MarketSoft as well as a patent holder on
the technology foundation of Passport) notes
with regard to winners in the marketplace: Another kind of biometric database, a
“There won’t be just one identity service. partial one containing data on criminals, sus-
There will be hundreds if not thousands of pects, and other “wanted” individuals, isn’t as
identity services.”41 He continues: sweeping as the kind of database that would
underlie a national ID card. Such databases
Identity is bigger than any one compa- would correspond to those underlying the
ny. Likewise, a person is bigger than face-recognition cameras used during Super
any one identity. As MIT professor Bowl XXXV. Used for surveillance in public
Sherry Turkle said in Life on the areas, faces are scanned, and features con-
Screen: Identity in the Age of the verted to a mathematical representation, pre-
Internet, individuals will have multiple sumably only to see if there is a match with
personae on the Internet—one for someone already in the database.
work, one for online shopping, one for One criticism of face recognition technol-
It may be that IDs
banking and more for their personal ogy is its failure rate, as the ability to recog- that are national in
interests. All of these “masks” will be nize faces on the basis of archived images scope will emerge.
founded in one true, master identity, appears to diminish as time passes despite
which will live everywhere, and in sev- claims that the facial map remains largely However, the
eral transparent services. Every identity fixed.44 Yet the accuracy of the technology is “multiple ID”
will point to the same credit card, if really a side issue: eventually it likely will be
you like, or every identity will point to quite reliable. As the technology improves,
approach appears to
a different one. Likewise with billing supporters argue, bad actors can be identi- be the verdict of the
address and shipping destination.42 fied at the theater or sporting event without marketplace so far.
disturbing anyone else.
It may be that IDs that are national in If we start with the assumption—and granted,
scope will emerge. However, the “multiple ID” it is an assumption; it requires taking law enforce-
approach appears to be the verdict of the mar- ment at its word—that the incidental images of
ketplace so far. The most prominent illustra- innocent individuals are not recorded or are oth-
tion of this is the fate of Microsoft’s erwise immediately discarded, face camera sur-
“Hailstorm” services. Introduced with much veillance may not count as surveillance of ordi-
fanfare in March 2001 with the intention of nary citizens in the manner critics fear. In other
harmonizing individuals’ information across words, the information collection—that pertain-
the Web and making it accessible via various ing to criminals—has already taken place, pre-
kinds of hardware devices, the system ran into sumably under appropriate legal procedures.
opposition. The opposition came, however, Alternatively, cameras can actively look for law-
not just from privacy advocates, which has cer- breakers, such as scofflaws engaged in misdeeds,
tainly been the case, but from potential part- such as painting graffiti.45 Or they can monitor
ners who are reluctant to yield control to public events such as rallies and protests, as well as
Microsoft over consumer information that public places such as subway stations.46 Properly
they might wish to govern themselves for conducted there is no privacy impact on the gen-
either strategic reasons or out of concern over eral population. But concern over whether gov-
security.43 Such is the nature of the security ernments can be trusted to discard incidental
and identification business. No one is ready to data collected on innocents is valid.
relinquish all control, and no one knows yet A related worry is that private industry can
what’s going to best satisfy wary consumers. profit handsomely from the exercise of improp-

er surveillance against citizens, an inappropri- begin learning about particular subjects,
ate state of affairs in a free society. The extent to thereby violating Fourth Amendment rights
which private firms profit from and even lobby by initiating unwarranted searches or obser-
for this kind of expenditure is a concern; this is vation of innocent individuals.
where private profit-making is at risk of cross- Clearly, face recognition technology, like
ing over into a law enforcement role. In that other kinds of camera surveillance technology,
regard the debate over face recognition systems makes it easy to begin tracking someone by
mirrors that over red-light cameras. In late 2001 creating a record for them, with or without
in San Diego, a judge threw out nearly 300 tick- their knowledge. It would be easy to begin
ets issued to motorists because of the contin- recording someone’s comings and goings with
gency fee of $70 per traffic ticket paid to the pri- such technologies as traffic light cameras, toll-
vate vendor of the equipment, Lockheed booth monitors, or face recognition technolo-
Martin IMS.47 The more tickets issued, the gies in public spaces. To assemble a diary of
more profit for Lockheed. someone’s movements, one need only save the
But properly restrained, public surveillance daily records from a monitoring device and
technology, when used for a “bad guy” data- cross-reference them with similar equipment
base, is not about surveillance of ordinary citi- in other locations. (Likewise, biometric chips
zens since the data collection will have already or ID cards armed with global positioning
been done. In fact, cameras might even cut capability could be used to track individuals).
down on unwanted searches. If the cameras are The average Briton is photographed by 300
doing their job and we assume a setting where surveillance cameras a day.50 In Washington,
police inspection is legitimate (for example, if D.C., the police force has launched the Joint
cameras are merely substituting for uniformed Operation Command Center, comprising 40
officers on the beat), there may be less need for screens monitored by 50 officers. 51 Many citi-
the random, invasive searches with which we zens are understandably bothered and consid-
are more familiar. As John D. Woodward Jr. of er the cameras a privacy invasion. Critics also
RAND noted with respect cameras deployed at note that “People behave in self-conscious
Super Bowl XXXV, “Face recognition helped to ways under the cameras, ostentatiously trying
protect the privacy of individuals, who other- to demonstrate their innocence or bristling at
wise might have to endure more individualized the implication of guilt,” like a group of teens
police attention.”48 Likewise, UCLA law profes- who gave “the finger” to the camera pivoting
sor Eugene Volokh noted, “At least in some sit- to follow them,52 or protestors who wear
uations, camera systems can promote both masks in defiance of cameras. 53
The risk of face security and liberty.”49 These are legitimate concerns, but there is
no real expectation of privacy in a constitution-
camera surveillance What Constitutes an Illegitimate Search? al sense in open, public areas. Most important
is that authorities The risks associated with camera surveil- is that no records are kept, and no databases
will use the lance technology differ from those associated created in the normal course of operations.
with ID cards. ID cards make us relinquish Moreover, as noted, cameras might decrease
cameras to learn our anonymity. By substituting a govern- more invasive physical searches of individuals
about particular ment standard for market-based identity and other forms of abuse. As Eugene Volokh
technologies, ID cards interfere with the evo- notes, the camera is more impartial and creates
subjects, thereby lution of the very authentication technology none of the “demeaning pressure” one feels to
violating Fourth of which they are an example. Face camera be “especially submissive” in a search or
Amendment rights. surveillance, on the other hand, doesn’t have pullover by a police officer, and there is no won-
the same immediate impact on anonymity dering whether one is stopped on the basis of
since nothing is known about anyone “sex or race or age.”54 Nonetheless, critics of
observed (except the “bad guys”). Instead, the camera surveillance systems do have valid fears;
risk is that authorities will use the cameras to thus such systems need to be overloaded with

checks and balances. One important check on knowingly exposes to the public . . . is Although there is
abuse would be if citizens had access to the not a subject of Fourth Amendment no general expec-
records generated, or if the records were other- protection . . . But what he seeks to
wise audited.55 Others safeguards will need to preserve as private, even in an area tation of privacy
be developed as well. accessible to the public, may be con- in public places,
With respect to public surveillance, Fourth stitutionally protected.58
Amendment protections must be made more
neither is there
clear, for this is an instance in which law has That the Fourth Amendment protects an expectation
not caught up to technology. James Harper, a people and not places must be a defining that one will be
lawyer and consultant who operates constraint with respect to the increasing use, a web clearinghouse on infor- of biometric surveillance technology by the purposefully
mation about privacy issues, summed up in government. Unfortunately, what will count identified and
congressional testimony the conditions as a search in the future—given the ease of one’s movements
required to fulfill Fourth Amendment guar- very intimate, up-close surveillance—remains
antees: “The Fourth Amendment requires a to be determined. For example, with respect mapped daily by
search to be based on probable cause. That is, to the government’s use of technology to the authorities.
government investigators must have a reason- observe an individual’s home (in this case,
able belief that a crime has been committed thermal imaging), the recent Kyllo59 decision
and that evidence or fruits of the crime can be seems favorable to privacy rights at first
found. The first question a court will ask when glance. The Court found that “obtaining
a citizen claims to have been unconstitution- information regarding the interior of the
ally searched is whether that person had a rea- home that could not otherwise have been
sonable expectation of privacy in the place, obtained without physical intrusion into a
papers, or information that government protected area constitutes a search—at least
agents have examined or taken.”56 where (as here) the technology in question is
Although there is no general expectation not in general public use.” As Cato Institute
of privacy in public places, neither is there an director of constitutional studies Roger Pilon
expectation that one will be purposefully noted with respect to that case, “the use of a
identified and one’s movements mapped high-tech device does not render what we all
daily by the authorities. No one simply going know to be a search to be a non-search.”60
about their business should be added to a But as pointed out in a recent article by
governmental enforcement database or made Mark Milone in Business Lawyer, Judge Steven’s
the subject of intense daily observation with- dissent in Kyllo points out that, given the
out probable cause and without a court Court’s interpretation, Fourth Amendment
order. In other words, at some point, tracking protection seems to erode as soon as the tech-
of an individual without a court order must nology attains “general public use.”61 Under
surely cross over into the territory of an Kyllo, it appears that once a technology capable
unreasonable search. of invading privacy is widely used in society,
Harper noted that the traditional inter- government will also be free to use it. Therefore
pretation of the Fourth Amendment as pro- the unresolved question now, despite both Katz
tecting places—our homes—evolved with the and Kyllo, is what applications of biometrics
1967 Katz v. United States decision,57 in which against individuals—wherever they may be—will
a telephone booth had been bugged. In that count as a search, given that the technologies
case, the warrantless eavesdropping was are so easy to deploy and use. The pressing issue
found to have violated Fourth Amendment now is the likely erosion in constitutional priva-
rights because: cy protection as biometric (and other potential
privacy invading) technologies are used not just
The Fourth Amendment protects to observe a home but to track an individual
people, not places. What a person beyond the home. One way or another, govern-

ments must acquire clearances equivalent to Lower Risk: Private Members-Only
those that they must secure in the non-digital Databases
world. Thus, the key focus of the privacy debate Another use of biometrics is voluntary
over the coming years will likely be the attempt databases for particular applications. In such
to determine where the line is crossed with databases, individuals are identified by such
respect to everyday biometric surveillance by means as retina scans and fingerprints, and
the government, once the surveillance involves matched with their previously created record
more than one data point concerning an iden- in the database. Such privately owned and
tified individual. managed databases, often developed for pur-
poses of security, tend to be partial databases
The Risk of Nuisance Law Enforcement of “members.” (Secure government installa-
Another related risk with public surveil- tions, of course, might appropriately use such
lance technology—given that it is invoked systems as well; that is a different matter from
now to thwart major incidents such as a ter- governments’ directing the technology at ordi-
rorist attack, is that use of the technology nary citizens.) Unlike databases of criminals,
will be expanded to target victimless crimes, to which everyone must demonstrate they do
like adult drug use. There is also the problem not belong, these are databases of members,
The key focus of nuisance law enforcement. Such mission wherein one must show one does belong. As far
of the privacy creep will be irresistible to politicians and as security is concerned, the benefits of a mem-
debate will likely local police forces. For example, with respect bers-only database can exceed those of the
to the red-light cameras, much in the news inclusive and involuntary government-driven
be the attempt to recently, localities can be tempted to lower databases. The manager of the private data-
determine where speed limits to artificially create violators and base is saying, in effect, “You may enter my pri-
criminals. Similarly, Rep. Richard Armey (R- vately owned building, airplane, parking
the line is crossed Tex.) noted that yellow-light intervals at garage, neighborhood, house, and so forth,
with respect intersections have been shortened, corre- but only if I know who you are.”
to everyday sponding to a rise in red-light scofflaws.62 Members-only databases are common and
One bright spot in the digital revolution, exist where security clearances are needed for
biometric given the potential loss of Fourth Amendment entry to sensitive areas: factories, laboratories,
surveillance protections, is that surveillance technologies secure campuses, and office parks, for exam-
are cheap, not just for governments, but for ple. This kind of system evolves naturally and
by the individuals as well. As technologies improve voluntarily. Its hard to get much more secure
government. and prices decline, they become more widely than knowing precisely those with whom one
available to the general public. This means interacts. Computer scientist Dorothy
that individuals can turn the electronic eyes Denning points to how such technologies are
right back on the government, exposing abus- more secure than password-type security clear-
es of individual rights. The X-10 mini-cam, ances since they aren’t dependent upon secre-
whose pop-up ads so annoy us on the Internet, cy for an assortment of applications—rather,
sells for about $80. Cheaper digital cameras they depend upon “liveness.”66 These tech-
cost around $20. From relatively low-tech, nologies can make it hard for malicious indi-
“stick-it-to-the-man” offerings like the Speed viduals to impersonate another person.
Trap Exchange63 on the Internet; to the Along with advanced applications, biomet-
Electronic Privacy Information Center’s rics such as iris scanners and fingerprint scan-
Observing Surveillance project, which docu- ners are commercially available. For example,
ments Washington, D.C.’s, camera networks;64 keyboards enabled by fingerprint-scanners sell
to the Witness project, which documents for under $200,67 and biometrically enabled
human rights abuses worldwide,65 surveil- mice, which also read fingerprints, are even
lance can be turned back on oppressive or mis- cheaper, but so far glitches prevent them from
guided governments. being a suitable replacement for passwords. 68

They can even assure that only the appropri- place. Businesses will have to determine,
ate, living, breathing, certified pilot com- though, what level of surveillance is consis-
mands an aircraft. tent with customer preferences, as well as
Private identity systems managed and employee contentment and morale, and per-
protected by answerable firms—systems in ceptions of fairness.
which owners reserve the right to refuse to There is no question that the workplace is
admit anyone not a member—may be prefer- increasingly being transformed by biomet-
able in numerous cases. Owners may have no rics; e-mail and keystrokes have long been
interest in matching faces against a database easily monitored. Biometrics like retina scan-
of terrorists, preferring instead to know who ners and voice monitors are on the scene and
you are, rather than that you’re not on a list raise new questions of appropriateness as
of criminals (although, of course, digital whereabouts and performance can be more
“most wanted” lists are surely imminent in easily ascertained. Motives for monitoring at
the biometric age). In the Washington, D. C., work have long included tracking productiv-
area, a private “country club” airline service ity and monitoring work flow (such as calls
has emerged, in which members agree to a with clients and tracking company vehicles);
background check, then are scanned when preventing theft and corporate spying;
they arrive for a flight.69 The company prefers guarding against liability for what employees
to have a database of customers who agree do on the job (such as preventing harass-
with the goal of security and are willing to ment); responsibility for employee health
undergo prior security checks, and who want and safety; preventing illegal or pirated soft-
everyone else on the flight to have undergone ware; and preventing personal use of compa-
the same. The operators, as well as the pas- ny property. Security rationales since
sengers who elect to use the airline, want to September 11 bolster the case for surveillance
know exactly who is flying with them. for many employers. Notable also is that
Even at typical airports (despite the federal workplaces have themselves changed because
takeover of airport security), related biometric of information technology. As more work is
options have the potential to eliminate much outsourced to telecommuters, observation,
of the new airport check-in nightmare. Some perhaps even with biometrics, can replace tra-
frequent fliers who use special hand-scan IDs ditional supervisory relationships.
are being swept past other passengers waiting Workplace use of surveillance technology,
in the long security lines. For example, Delta whether biometric-based or not, is legitimate.
and American Airlines offer such faster pro- It isn’t government’s job to interfere with
cessing for premium passengers.70 Security such private arrangements; on the other Businesses will
and comfort come from knowing who the hand, the techniques must be seen as fair and
other person is. Although such systems may justified by workers. Already some prize have to determine
be disparaged on egalitarian grounds, the employees negotiate freedom from surveil- what level of
holder will have in fact undergone intense lance as part of benefit and employment surveillance is
background checks, and they may pay consid- packages.71 Some workplace uses of surveil-
erably more. lance technology will come to be regarded as consistent with
Because the need for authentication is so appropriate, whereas others will not. For customer prefer-
prevalent in so many lines of business, the example, judges at the U.S. Court of Appeals
marketplace is driving the biometrics indus- for the Ninth Circuit protested the system set
ences, employee
try. Not only is the marketplace capable of up to monitor usage of their computers by contentment and
respecting the rights of individuals not to be the Administrative Office of the Courts, a morale, and
part of an official government database, mar- Washington bureaucracy. 72 The judges
kets can offer significant advantages with ordered the information technology staff to perceptions of
respect to security, owing to the considerable disconnect the equipment. Selective surveil- fairness.
amount of research and development taking lance may be seen as a class issue, so issues of

Fundamentally, fairness matter. As Eric Rolf Greenberg, a what their kids and spouses, respectively, are
biometrics is director at the American Management up to online. Tracking of patrons in Las
Association put it, “if, in the 1950s, the image Vegas casinos is a given. Yearly pass-holders
about increasing was of a huge room with all the desks point- at Disney World’s Magic Mountain can
convenience and ing in the same direction and a supervisor attain clearance by fingerprint.76 Visa
walking upon and down the aisles, what we International is exploring biometrics to com-
service rather are seeing now is the electronic and biological bat credit card fraud,77 and ATMs that recog-
than invading evolution of that.”73 People have alternatives nize faces are imminent.78 At a Kroger gro-
privacy. to that now, and companies have market cery in Texas, a test project allows shoppers
incentives to use their collective head and to leave purses, wallets and IDs at home and
proclaim what kinds of surveillance they’ll pay with a fingerprint (a step on the way to
disavow and what lines will not be crossed. Electronic Product Code technology to allow
For example, companies might make clear a the checking out of an entire basket of gro-
policy of not monitoring web-surfing, or of ceries at once).79 Implanted chips can make
not sharing data with other organizations or, medical information from pacemakers, arti-
if they do, making the policy clear. ficial joints, and pumps more readily avail-
Clearly the encroachment of biometrics able to medical professionals.80 When used in
into society, even when not injected by govern- cell phones and personal digital assistants
ment fiat, will raise important social issues. (“Palm Pilots”), biometric identification
But fundamentally, biometrics is about chips will better enable digital signatures and
increasing convenience and service rather than mobile commerce.81
invading privacy. Since people have alterna- People, especially the young, will likely very
tives to dealing with business and employers easily adapt to tomorrow’s cashless, keyless,
that snoop too much, companies will be walletless society. Cyborg Citizen author Chris
induced not to look for things they don’t need Hables Gray told the Los Angeles Times that “I’d
to know and to provide assurances of privacy. be shocked if within 10 years you couldn’t get
For example, GPS or other tracking of compa- a chip implanted that would unlock your
ny vehicles might make sense (as in the case of house, start your car, and give you money.”82
the German trucking company that sought It’s not hard to envision the convergence of
face-recognition technology to thwart hijack- the young people of today who think nothing
ings).74 On the other hand, monitoring trips of multiple body piercings with the mobile-
to the toilet or coffee pot likely does not. computer wearing “not-quite-cyborgs” of MIT
Likewise, it seems insulting and misguided for and Xybernaut Corporation. They and their
employers to use sensor and smart-badge progeny will undoubtedly have fewer qualms
equipped “Hygiene Guard”75 to determine if about merging man and machine than many
employees have washed their hands. Similar do today. Paul Saffo of the Institute for the
restraint on the part of companies is in order Future noted, “As some people wring their
with respect to observing and sharing infor- hands about the invasion of privacy and civil
mation about customers; lessons can be liberty, a whole other generation is going to
learned from mistakes made by Internet firms go, ‘Cool! I’ve always wanted to embed tech-
as well as from successes by firms who make it nology in my body.’ It’s going to be fashion.
a priority to safeguard individuals privacy One sure sign that teenagers will love it is if it
(and even anonymity). terrifies their parents.” 83 It won’t terrify all par-
Interestingly, however, the marketplace ents, of course: for proof, there is already a
enters the biometric age with individuals family in Florida with implanted biometric
seemingly more accepting of modern surveil- chips.84 (However, given that they require
lance technology than is commonly acknowl- injection via a pinky-sized “needle,” implanted
edged. Individuals already use such tools as chips haven’t arrived as a mainstream technol-
“nannyware” and “adulteryware” to find out ogy just yet.)

With chips being embedded in devices of But that is an issue apart from biometrics
all sorts (including bodies), as well as such itself, and one that has always been a concern.
developments as the growth of wireless In that respect, markets can likely provide us
online access nodes, biometrics is really just a with relative anonymity. The question isn’t
subcategory of tomorrow’s vast range of whether it’s possible but whether government
information technologies. As one writer put will permit anonymity.
it, “Look out a few more years and nano-cam-
eras as small as grains of sand will create a
world in which the wind has eyes.”85 Summary: Acceptable and
Concerns understandably abound, exem- Unacceptable Biometrics
plified once again by Marc Rotenberg of the
Electronic Privacy Information Center, who To review the three basic categories of bio-
asks, concerning of implantable chips, “Who metric deployment, the most invasive is the
gets to decide who gets chipped?” and seems national ID variety, which represents an
to regard even family uses of the technology involuntary database in which everyone must
as akin to “putting a leash on a pet.”86 But be included. Such schemes have serious
families, of course, have the right to make implications for privacy, anonymity, civil dis-
such decisions over guardianship themselves. obedience, and the proper relationship of the The boundary
It’s difficult to argue that using the technol- individual to the state. between public
ogy for disabled parents or for children is a The second category of biometrics is char- and private data-
violation of liberty. And, of course, where acterized by databases of sought-after individ-
technologies go too far or are seen as unjust, uals and relies upon surveillance technologies bases can become
public outcries can result in their removal, as like face-recognition. These databases proper- unacceptably
happened with anti-shoplifting, face-recog- ly contain no innocent individuals and, if
nition surveillance cameras in Borders Books properly administered, exclude the possibility
in London.87 of involuntary inclusion. However these sys-
However, one risk does deserve special tems could easily enable tracking of specific
attention, and it has been noted above with individuals, and therefore they require a yet-
respect to governmental surveillance. The to-be-developed battery of safeguards to pro-
boundary between public and private databas- tect Fourth Amendment rights. 89
es can become unacceptably blurred. Deirdre The third category is defined not by gov-
Mulligan of the Samuelson Law, Technology ernmental uses of biometrics but by private
and Public Policy Clinic at the University of commercial and workplace uses of biometric
California at Berkeley’s law school has warned, technologies for security, commerce, and
“The wall between the government and private monitoring. While government-driven data-
sector is increasingly porous.”88 With regard to bases contain information on “wanted” indi-
biometrics, one solution to the blurring of viduals, this category encompasses technolo-
public and private databases is to forbid the gies limiting access to those among a pre-
use by the private sector of government-man- screened group of innocent individuals, that
dated biometric database information. In allow users to show that they are who they
other words, commerce mustn’t be allowed to claim and are not impersonating someone.
rely on government-mandated information— These uses of biometrics have no implica-
as has occurred with the Social Security card; tions for political liberty; rather, they are vol-
rather, the private sector must generate its untary in the sense that their deployment is
own information, for purposes limited by the market driven. Inclusion is voluntary as a
market’s twin engine of consumer choice and condition of access to another’s property, or
consumer rejection. Of course, governmental for secure access to one’s own personal ser-
access to private data gained through the use vices (such as financial accounts). Such uses
of biometrics can be obtained by subpoena. of biometrics are best regulated by market

forces and evolving social norms, and will experimentation can make us safer. We lose
continue to be fine-tuned by consumer and that dynamic if most private companies
employee acceptance or resistance. The “pri- begin piggybacking on government ID cards.
vate use” subset of biometrics technologies In addition to forcing us to give up informa-
also seems to offer the best chances for the tion that we may not wish to share, the imple-
development of genuinely secure systems. mentation of a national ID card also creates a
“honeypot” of data about millions of individu-
als, an attractive target for data thieves. And if
National Biometrics such data gets placed on the Internet, the risk
Standards Undermine goes up dramatically. The Internet, where much
government information resides, was not
National Security designed for this kind of security. It is extreme-
ly vulnerable to hackers, because no one can be
If government rather than the private sec- excluded; anyone can get online via thousands
tor dominates the deployment of biometric of public access points. After September 11, the
technologies, security aims—both national federal government removed a considerable
and localized or private—can be undermined. amount of data from websites that should
Businesses compete; and one area in which never have been posted in the first place, such as
they can compete is in the development of details about chemicals contained on site at
technologies that enhance security. industrial plants.91
Government-mandated ID technology, pre- The risk of a “Digital Pearl Harbor”92 even
sumably acquired as the result of this or that led Richard Clarke, the nation’s top cyber-
contractor’s winning bid, would tend to lock security official, to call for a separate network
in a set of national standards (since malls, (not connected to the Internet) for govern-
stadiums, workplaces, etc. would likely rely mental data, unconvinced that a public net-
on the national ID for access rather than work from which no one could be excluded
their own or alternative biometric IDs). That could ever be secure.93 While the govern-
would undermine research and innovation in ment’s ability to keep individual information
secure biometrics applications, whereas leav- secure is not the fundamental issue with
ing development in the hands of the private respect to information collection about pri-
marketplace would help spur the advance- vate citizens, it is essential to note that gov-
ment of technologies as a matter of competi- ernment cannot offer assurances that our
tive necessity. Government-centric biomet- information will be safe from penetration.
Private businesses rics means an environment of lobbyists and Even if national ID data were not placed on
appropriations that locks in certain biomet- the Internet but were on private government
have control over ric hardware and software vendors rather networks, the safety of the data would be
security in myriad than a real marketplace. (In a sense, Larry unlikely. The Department of Defense has
ways, and their Ellison was on the right track in offering to been hacked into since September 11, includ-
provide the national ID software free, so that ing episodes involving satellite spy pictures
experimentation there would be “no question of corporations and missile secrets. 94 Other government sites
can make us safer. benefiting.”90 His proposal still doesn’t get and databases consistently fail security tests.
around the lock-in dilemma—he would obvi- That is why, to the extent commercial
ously be happy if Oracle provided the soft- society relies on comprehensive and secure
ware of choice.) Politicization of authentica- databases, and it unquestionably does, secu-
tion technologies would undermine research rity techniques must benefit from improve-
and innovation in ever more secure biomet- ment impelled by the market process.
rics applications. We shouldn’t lose sight of Competition in the creation of secure identi-
the fact that private businesses have control ty systems and secure access is a fundamental
over security too, in myriad ways, and that necessity, especially as those systems increas-

ingly incorporate biometrics. Although the
private sector may not always keep informa- Notes
tion secure, there is no better option. 1. James Gilmore, former Governor of Virginia and
Consumers value security, and those private head of the Advisory Panel to Assess Domestic
entrepreneurs who best supply that value will Response Capabilities for Terrorism Involving
profit most handsomely. Innovations will Weapons of Mass Destruction,quoted in Molly M.
Peterson, “National ID System Provokes Civil
occur in biometric and security standards Liberties, Security Needs,” National Journal’s
just as they do in every other good and service Technology Daily, March 27, 2002.
sector in the economy. A government
“nationalization” of the technologies by 2. The term was used in a February 1, 2001, press
release from the American Civil Liberties Union;
crowding out the private sector serves no “ACLU Calls for Public Hearings on Tampa’s ‘Snooper
legitimate ends with respect to enhancing Bowl’ Video Surveillance,”
authentication technology. n020101a.html.

3. See David Coursey, “Can ‘Brain Fingerprints’

Protect Us from Terrorists?” ZD Net, October 2,
Conclusion 2001,
0,10738,2815694,00.html. See also the follow-up
The proliferation of biometric technolo- article by Coursey, “Brain Fingerprinting: What
You Thought, What I Meant,” ZD Net, October 5,
gies raises new and challenging questions in 2001,
a society that enshrines privacy and liberty. 0,10738,2816429,00.html.
Biometrics can either enhance or undermine
our liberties depending upon their uses. A 4. Michelle McCann, “Microchip Keeps Track of
Pets,” Government Computer News, November 1997,
framework is needed by which we may
resolve issues pertaining to proper and legiti- /desk.htm.
mate deployment. Citizens’ rights are violat-
ed to the extent government engages in sur- 5. See, for example, David Streitfeld, “First Humans
to Receive ID Chips,” Los Angeles Times, May 9, 2002.
veillance not appropriate in a free society, and
to the extent that private sector companies 6. Robert O’Harrow Jr. “Next: An ID Chip Planted
gain profits or police powers from aggressive in Your Body?” Washington Post, December 18,
enforcement of laws. Most fundamentally, 2001, p. E1.
governments should not force citizens to 7. See Ivan Amato, “Big Brother Logs On,” Technology
submit to biometric identification, which Review, September 2001, www.technologyreview.
rules out national ID cards. Governments com/articles/amato0901.asp.
also must recognize that Fourth
8. A concern noted by Marc Rotenberg of the
Amendment protections will apply in the Electronic Privacy Information Center in Terry
biometric age, which rules out using public Lane, “Database Regulation Key to ID Cards and
surveillance systems to deliberately identify Biometrics, Panel Says,” Washington Internet Daily,
and track individuals without the authority October 23, 2001, p. 3.
of a court order; other safeguards in the 9. Ayn Rand, The Fountainhead (1943: New York:
arena of public-place surveillance will need to Bobbs-Merrill, 1968), pp. 729–30.
be developed as well. Finally, with respect to
private sector applications of biometrics, 10. Rob Fixmer, “Protecting Your Digital Identity,”
Interactive Week, October 1, 2001,
access to government-mandated databases article/0,3658,s=722&a=15354,00.asp.
must be off-limits. Private sector biometrics,
which show enormous promise, must face 11. Quoted in Dee Ann Davis and Nicholas M.
either the approval or wrath of the public in Horrock, “Ridge Eyes New Driver’s Licenses,”
Washington Times, May 2, 2002,
order to be properly “regulated”—and that /upi-breaking/02052002-072009-4333r.htm.
process is undercut when the lines between
public and private databases are blurred. 12. Larry Ellison, “Digital IDs Can Help Prevent

Terrorism,” Wall Street Journal, October 8, 2001, Rogers, “National ID Debate Is Key Issue for Valley,” San Jose Mercury News, October 25, 2001, p. 8A.

13. Davis and Horroc. 30. William Safire, “Threat of a National ID,” New
York Times, December 24, 2001, p. 15.
14. Frank Pellegrini, “The National ID that Isn’t,
Yet,” Time, January 8, 2002, 31. Shane Ham and Robert D. Atkinson,
nation/article/0,8599,191857,00.html. “Frequently Asked Questions About Smart ID
Cards,” Progressive Policy Institute, January 18,
15. See for example, “Your Papers Please,” 2002,
Washington Times, January 21, 2002. =140&subsecID=290&contentID=250075.

16. H.R. 4633, p. 7. 32. Lane, October 23, 2001, p. 3.

17. Davis and Horrock, 2002. 33. John J. Miller and Stephen Moore, “A National
ID System: Big Brother’s Solution to Illegal
18. Robert A. Levy, “The ID Idea,” National Review Immigration,” Cato Policy Analysis no. 237,
Online, October 24, 2001, September 7, 1995,
comment/comment-levy102401.shtml. 237-es.html.

19. Noted in Donna Leinwand, “National ID In 34. Stephen Levy, “Playing the ID Card,” Newsweek,
Development,” USA Today, January 22, 2002, May 13, 2002, p. 44.
id-cards.htm. 35. Lee Tien, “The VeriChip: Issues and
Concerns,” TechTV Silicon Spin, March 11, 2002,
20. See Mona Charen, ID Card Idiosyncrasy,”,23
Washington Times, January 28, 2002, p. A14. 008,3375488,00.html.

21. H. R. 3162, Uniting and Strengthening America 36. Levy.

by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act, October 25, 37. McIntyre v. Ohio Campaign Commission, 514 U.S.
2001. 334, 115 S.Ct. 1511 (1995). Cited in Jonathan D.
Wallace, “Nameless In Cyberspace: Anonymity on
22. For example, see “A Nation’s Liberty Is the Internet,” Cato Institute Briefing Paper no.
Hijacked,” Connecticut Law Tribune 27, no. 51 54, December 8, 1999. pp. 2–3.
December 14, 2001, p. 21.
38. Watchtower Bible and Tract Society of New York,
23. John Solomon, “FBI Warned of Training Inc. v. Village of Stratton, 122 S.Ct. 2080 (2002).
before 11th,” Washington Post, May 3, 2002, 39. Leading vehicles in the 107th Congress are S.
articles/A25198-2002May3.html. 2201, the Online Personal Privacy Act introduced
by Sen. Ernest Hollings (D-S.C.) and H.R. 4678,
24. See, for example, Mark Riebling, “The Real the Consumer Privacy Protection Act of 2002
Intelligence Failure,” National Review Online, May introduced by Rep. Cliff Stearns (R-Florida).
28, 2002,
comment-riebling052802.asp. 40. Simson Garfinkel, “Identity Card Delusions,”
Technology Review, April 2002, p. 31
25. Edward H. Crane and Roger Pilon, “Liberta-
rianism Lives,” Wall Street Journal, May 28, 2002. 41. Chris Bergh, “ID Wars—It Really Doesn’t
Matter,” ZDNet, January 3, 2002, http://techup-
26. Christine Hall, “Government Trade Association,1417
Calls for North American ID Drivers License,” 9,2835940,00.html., January 15, 2002,
ViewNation.asp?Page=\Nation\archive\200201\NA 42. Ibid.
43. See John Markoff, “Microsoft Has Quietly
27. Davis and Horrock, 2002. Shelved Its Internet ‘Persona’ Service,” New York
Times, April 11, 2002, p. C1.
28. Richard Morin, “Poll: Half of All Americans Still
Feel Unsafe,” Washington Post, May 3, 2002, p. A7. 44. For example, see Stephanie Olsen and Robert
Lemos, “ACLU: Face-Recognition Systems Won’t
29. See, for example, Elise Ackerman and Paul Work,” ZDNet News, Novermber 2, 2001,

www.zdnet. com/filters/printerfriendly/0,6061, 59. Kyllo v. United States, 533 U.S. 27 (2001),

45. For example see Janice Rombeck, “San Jose’s 60. Associated Press, June 13, 2001.
Message to Graffiti Vandals: You’re Being Watched,”
San Jose Mercury News, June 2, 2002, www.bayarea. 61. Mark G. Milone, “Biometric Surveillance:
com/mld/bayarea/3391162.htm?template=content Searching for Identity,” Business Lawyer 57,
Modules/printstory.jsp. November 2001, p. 507.

46. Noted in Spencer S. Hsu, “D.C. Forms 62. Noted in Eric Peters, “Rigging Traffic Lights Hurts
Networks of Surveillance,” Washington Post, Safety,” Detroit News, August 12, 2001, www.detnews.
February 17, 2002, p. C1, www.washingtonpost. com/2001/editorial/0108/12/a18-266863.htm.
rinter. 63.

47. Len Novarro, “Judge Dismisses 290 Red-Light 64.

Camera Tickets,” San Diego Union Tribune,
September 4, 2001. 65.

48. John D. Woodward Jr., “Super Bowl 66. Dorothy E. Denning, “Why I Love Biometrics: It Is
Surveillance: Facing up to Biometrics,” RAND ‘Liveness,’ Not Secrecy, That Counts,” Information
Arroyo Center, 2001, Security, January 2001,
/IP/IP209/IP209.pdf. /articles/january01/columns_logoff.shtml.

49. Eugene Volokh, Big Brother Is Watching—Be 67, Fred McClimans, “Is Biometrics the Answer to
Grateful! Wall Street Journal, March 26, 2002, p. Increased Security?” Network World Fusion,
A22. October 22, 2001,
50. Jeffrey Rosen, “A Cautionary Tale for a New
Age of Surveillance, New York Times Magazine, 68. Noted in a review written by Carlos A. Soto,
October 7, 2001, “Biometric Security Not Quite Ready to Replace
magazine/puSURVEILLANCE.html. Passwords,” Washington Post, May 2, 2002, p. E7.

51. Noted in William Safire, “‘Big Brother’ In 69. Shannon Henry, “For Wealthy, A New Way to
America,” International Herald Tribune, February Fly on Business,” Washington Post, April 2, 2002, p.
19, 2002, E1,
52. Rosen, maga- Apr1&notFound=true.
70. Noted in Margaret Carlson, “The Case for a
53. Linda Gibson, “Masked Protesters Fight Face National ID Card,” Time, January 14, 2002,
Scans,” St. Petersburg Times, July 15, 2001, www. /0,9565,193705,00.html.
71. Noted in Stefanie Olsen, “Big Brother
54. Volokh, 2002. Knocked in 2000,” CNET, December 28,
55. Noted by Jeffrey Rosen in Lane, October 23, html?legacy=cnet.
2001, p. 3.
72. Neil A. Lewis, “Rebels in Black Robes Recoil at
56. Prepared Statement of Jim Harper, Editor of Surveillance of Computers,” New York Times,, at the Hearing on Red-Light Cameras, August 8, 2001. p. A1.
U.S. House of Representatives Committee on
Transportation and Infrastructure Subcommittee 73. Diane E. Lewis, “Biological Data May Replace
on Highways and Transit, July 31, 2001, www.pri- ID Cards, Boston Globe, June 6, 2001, http://
testimony.html. /062401_privacy.html.

57. Katz v. United States, 389 U.S. 347 (1967), 74. Reuters, “Biometrics: Hot Technology, Tough Policy,” ZDNet, November 14, 2001, http://tech-,14
58. Cited in Harper, July 31, 2001. 179,2824453,00.html.

75. 85. Adam L. Penenberg, “The Surveillance
hygieneguard.html. Society,” Wired, December 2001, p. 160.

76. Noted in Jeffrey Goldfarb and Daniel Sorid, 86. Streitfield, 2002.
“Hand-Eye Coordination Drives Biometrics
Deals,” Reuters, May 4, 87. For example see Rick Perera, “Borders Books
com/news?tmpl=story&cid=581&ncid=581&e=1 Kills Face-Scanning Plan Amid Criticism,”
0&u=/nm/20020504/tc_nm/column_mergers_d Computerworld, August 27, 2001,
77. Ibid.
88. Robert O’Harrow, “Privacy, Please,” Washington
78. Michael Kanellos, “On the Way—ATMs that Post, June 19, 2002, p. H5.
Recognize Your Face,” ZDNet Australia, October 9,
2001, 89. Interestingly enough, although the “Snooper
html. Bowl” episode generated outrage, post–September
11 polls indicated a willingness on the part of many
79. David Kaplan, “It’s Kinda Touch-and-Go: New to accept even more invasive national ID systems.
System Lets Kroger Shoppers Pay with Fingerprint,”
Houston Chronicle, May 15, 2002 p. A.1. 90. Ellison, 2002.

80. Jay Lyman, “The Cyborgs Are Coming, The 91. Angela Logomasini, “When Terrorists Have a
Cyborgs Are Coming,” News Factor Network, ‘Right to Know’,” Competitive Enterprise
December 10, 2001, Institute, February 11, 2002,
story/15428.html. con/019,02387.cfm.

81. Noted in Reuters, “Biometrics: Hot 92. Ariana Eunjung Cha, “For Clarke, A Career of
Technology, Tough Policy,” ZDNet, November 14, Expecting the Worst: Newly Appointed
2001, Cyberspace Security Czar Aims to Prevent ‘Digital
stories/main/0,14179,2824453,00.html. Pearl Harbor,’” Washington Post, November 4, 2001,
p. A10.
82. David Streitfeld, “A Chip ID That’s Only Skin-
Deep,” Los Angeles Times, December 19, 2001. 93. Associated Press, “Top Cybercop Wants New
Net,” October 10, 2001.
83. Ibid.
94. Noted in “Boy of 17 Hacks into Missile
84. Julia Scheeres, “They Want Their ID Chips Secrets,” Standard Foreign News Desk, www.thisis-
Now,” Wired News, February 6, 2002, www.wired.
com/news/privacy/0,1848,50187,00.html. w_id=613066&in_review_text_id=582545.

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