Biometric Cyberintelligence and the Posse Comitatus Act

By Hu, Margaret | Emory Law Journal, January 1, 2017 | Go to article overview

Biometric Cyberintelligence and the Posse Comitatus Act


Hu, Margaret, Emory Law Journal


Introduction

The potential cybersurveillance consequences of mass biometric data collection are not yet fully known.1 What is known, however, is that mass biometric data storage and analysis can lead to multiple unprecedented legal challenges2 as big data tools and new forms of cybersurveillance technologies place increasing strain on existing privacy law doctrine,3 statutory data privacy protections, and constitutional protections.4 Experts note that this legal strain is especially acute as the programmatic and technological architecture of big data cybersurveillance can be embedded within the data collection and data analysis protocols of civilian and domestic law enforcement activities,5 and the everyday activities of an information society that is in the midst of a big data revolution.6 Therefore, maintaining strict separation of data sharing between military and foreign intelligence operations7 on the one hand, and civilian, homeland security, and domestic law enforcement agencies on the other hand,8 is increasingly difficult and may be impracticable.

To better understand the potential legal consequences of the merger of civilian and military, along with domestic and foreign mass biometric data harvesting, this Article demonstrates the potential long-term cybersurveillance consequences of the increased sharing of biometric databases between military, intelligence, and law enforcement organizations, and other public and private entities.9 Specifically, this Article contends that biometric cybersurveillance and biometric cyberintelligence objectives are increasingly used to justify the mass digital capture and analysis of unique physiological and behavioral traits of entire populations and subpopulations.10 Traditional bureaucratized surveillance protocols are in the process of merging with bureaucratized big data cybersurveillance systems to increasingly incentivize the development of universal biometric databases of the entire citizenry, often through biometric-based national ID systems,11 and particular biometric databases of targeted classes within a specific citizenry, for example, DNA databases of arrestees.12 Further, as nations enter into agreements to share biometric databases for military defense, foreign intelligence, and law enforcement purposes, the multinational cybersurveillance implications of biometric data collection and data analysis are likely to expand over time.13

Biometrics is "[t]he science of automatic identification or identity verification of individuals using physiological or behavioral characteristics."14 Traditionally, these physiological traits have included digitally scanned fingerprints, digital photo analysis through facial recognition technology, iris scans, and DNA.15 Increasingly, physiological identifiers that can be digitally captured, stored, and analyzed include more experimental biometrics, including gait,16 skeletal bone scans,17 scars and tattoos,18 ear shape19 and eyebrow shape,20 breathing rates,21 and eye pupil dilation,22 among other identifiers.

Understanding how the intelligence community and military branches may use biometric cybersurveillance tools and techniques-indeed, understanding biometric cybersurveillance itself-is crucial to the ongoing project amongst legal scholars of understanding the burgeoning "National Surveillance State."23 This academic inquiry theorizes the necessary legal safeguards to protect civil liberties and democratic governance while allowing the surveillance necessary for national security to go forward. Military surveillance abroad is less restrained than the kinds of civilian surveillance allowed domestically; however, the efficiencies of cybersurveillance technologies being tested and implemented abroad can and likely will, in time, have application in serving domestic law enforcement objectives and homeland security intelligence purposes.

Digitalized biometric data now forms the basis for what the U.S. government terms "biometrically enabled intelligence"24 or "biometric-enabled intelligence,"25 apparently used interchangeably. …

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