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Prof. Margaret Hu’s Cybersurveillance Article Reviewed at Concurring Opinions

Prof. Margaret Hu

Prof. Margaret Hu

Earlier this month at the blog Concurring Opinions, Danielle Citron reviewed Washington and Lee law professor Margaret Hu’s article, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013), available at SSRN.  Here is an excerpt of the review:

Professor Margaret Hu’s important new article, “Biometric ID Cybersurveillance” (Indiana Law Journal), carefully and chillingly lays out federal and state government’s increasing use of biometrics for identification and other purposes. These efforts are poised to lead to a national biometric ID with centralized databases of our iris, face, and fingerprints. Such multimodal biometric IDs ostensibly provide greater security from fraud than our current de facto identifier, the social security number. As Professor Hu lays out, biometrics are, and soon will be, gatekeepers to the right to vote, work, fly, drive, and cross into our borders. Professor Hu explains that the FBI’s Next Generation Identification project will institute:

a comprehensive, centralized, and technologically interoperable biometric database that spans across military and national security agencies, as well as all other state and federal government agencies.Once complete, NGI will strive to centralize whatever biometric data is available on all citizens and noncitizens in the United States and abroad, including information on fingerprints, DNA, iris scans, voice recognition, and facial recognition data captured through digitalized photos, such as U.S. passport photos and REAL ID driver’s licenses.The NGI Interstate Photo System, for instance, aims to aggregate digital photos from not only federal, state, and local law enforcement, but also digital photos from private businesses, social networking sites, government agencies, and foreign and international entities, as well as acquaintances, friends, and family members.

Such a comprehensive biometric database would surely be accessed and used by our network of fusion centers and other hubs of our domestic surveillance apparatus that Frank Pasquale and I wrote about here.

Biometric ID cybersurveillance might be used to assign risk assessment scores and to take action based on those scores. In a chilling passage, Professor Hu describes one such proposed program:

FAST is currently under testing by DHS and has been described in press reports as a “precrime” program. If implemented, FAST will purportedly rely upon complex statistical algorithms that can aggregate data from multiple databases in an attempt to “predict” future criminal or terrorist acts, most likely through stealth cybersurveillance and covert data monitoring of ordinary citizens. The FAST program purports to assess whether an individual might pose a “precrime” threat through the capture of a range of data, including biometric data. In other words, FAST attempts to infer the security threat risk of future criminals and terrorists through data analysis.

Under FAST, biometric-based physiological and behavioral cues are captured through the following types of biometric data: body and eye movements, eye blink rate and pupil variation, body heat changes, and breathing patterns. Biometric- based linguistic cues include the capture of the following types of biometric data: voice pitch changes, alterations in rhythm, and changes in intonations of speech.Documents released by DHS indicate that individuals could be arrested and face other serious consequences based upon statistical algorithms and predictive analytical assessments. Specifically, projected consequences of FAST ‘can range from none to being temporarily detained to deportation, prison, or death.’

Data mining of our biometrics to predict criminal and terrorist activity, which is then used as a basis for government decision making about our liberty? If this comes to fruition, technological due process would certainly be required.

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