Airport Biometrics: A Primer (2021) / Chapter Skim
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Pages 43-65
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43 Legal, Policy, and Privacy Review Summary To pursue biometrics as potential solutions to challenges in aviation, industry stakeholders need to understand the legal, policy, and privacy issues associated with the use of biometric data. The two predominant policy and legal issues associated with the use of biometric data (including facial recognition)
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44 Airport Biometrics: A Primer data (including facial recognition) are protection of privacy rights and the inconsistent treatment of biometrics under a myriad of international, federal, and state laws.
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Legal, Policy, and Privacy Review 45 Airport operators and stakeholders, such as airlines and vendors, not only must comply with applicable federal and state laws that apply to biometric collection and use for employees and consumers but, in certain circumstances, must confront conflicting laws from multiple states and other countries or international organizations. Airport operators face differing risks and requirements depending on whether they are using biometric data collection for employee timekeeping, access to restricted areas, or other airport operational purposes, or are dealing with passengers to facilitate travelers' experience or retail purchases.
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46 Airport Biometrics: A Primer Privacy advocates have challenged the collection and disclosure of biometric data under the provisions of the Fourth and Fifth Amendments of the Constitution.12 The Fourth Amendment to the U.S. Constitution states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause .
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Legal, Policy, and Privacy Review 47 that pose a potential for unreasonable intrusion into a person's privacy.32 The Supreme Court noted that technological advances provide "access to a category of information otherwise unknowable,"33 and "implicate privacy concerns" in a manner as different from traditional intrusions as "a ride on horseback" is different from "a flight to the moon."34 The trend from recent Supreme Court cases focused on GPS and cell phone tracking appears to signal that, where the use of heightened technology is more intrusive than traditional forms of observation, courts may find the tracking and identification of persons to be unreasonable under the Fourth Amendment.35 Exceptions to the Fourth Amendment Warrant Requirement Even where the Fourth Amendment text would otherwise suggest its application, the Supreme Court has recognized certain governmental activities as reasonable per se under the Fourth Amendment. Because these activities are deemed reasonable per se, they are regarded as exceptions to the warrant requirement of the Fourth Amendment.
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48 Airport Biometrics: A Primer accordance with a federally approved security plan are deemed to fall within the special needs exception to the Fourth Amendment.47 Recently, there has been increased attention and scrutiny where private parties are engaged in voluntary data sharing with law enforcement. Most cases decided in this area focus on the degree of governmental influence over the initial collection (Brennan-Marquez 2018)
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Legal, Policy, and Privacy Review 49 Service Act (setting forth authorities to control public health emergencies such as COVID-19)
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50 Airport Biometrics: A Primer State laws widely vary in their protections, penalties for violations, and requirements for businesses.58 According to at least one article, as of May 2020, it is legal in 44 states to identify an individual using images taken without consent while they are in public, while New York, California, Washington, Illinois, Nevada, and Texas do not allow it for commercial use (Thales 2020) (see Figure 3-2)
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Legal, Policy, and Privacy Review 51 Over the period of 2018 to 2019, over 200 lawsuits were filed for alleged violations of BIPA, and reportedly this is on the rise (Prescott 2020)
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52 Airport Biometrics: A Primer Most recently, similar legislation has been introduced in several other states (e.g., Arizona, Florida, and Massachusetts) .65 States have also enacted laws to protect the privacy of minors and students.66 In addition to the proliferation of state laws enacted or under consideration, local jurisdictions have approved ordinances banning the use of facial-recognition technology by city government agencies and, in particular, police forces (Hudgins 2019)
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Legal, Policy, and Privacy Review 53 have tended not to view public surveillance as a search governed by the Fourth Amendment. In a recent decision regarding the use of four fixed automatic license plate readers to surveil the ends of a bridge, a state court stated that, while the limited use of the technology did not constitute an unreasonable search, it struggled with where to draw the line.75 Part of the challenge the courts face is assessing society's reasonable expectation of privacy where heightened technology influences or shapes those expectations, particularly with concerns centered around pervasive police presence.76 Legal and policy challenges associated with private-sector use are on the rise where security cameras are linked to some form of facial-recognition technology.77 Bias While the intersection of facial-recognition technology and discrimination, misidentification, and bias has occasionally cropped up in criminal prosecutions, policing, or cases involving false arrest,78 there has been little litigation against private employers applying the technology where the claim is one of bias or discrimination.
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54 Airport Biometrics: A Primer particularly facial-recognition technology, to perform verification functions associated with traveler facilitation programs, criminal investigations, and passport administration.83 The European Union (EU) General Data Protection Regulation (GDPR)
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Legal, Policy, and Privacy Review 55 or law enforcement agencies. Further, it should be noted that the GDPR applies to personal data obtained from public sources (Heward-Mills 2020)
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56 Airport Biometrics: A Primer In 2018, the EU released the Regulation (EC) 2018/1725 of the European Parliament and of the Council of 23 October 2018 for the protection of natural persons with regard to the processing of personal data by the EU institutions, bodies, offices, and agencies and on the free movement of such data, and repealed Regulation (EC)
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Legal, Policy, and Privacy Review 57 International Organization Activities There are a number of international organizations working on, coordinating, and collaborating with others to support initiatives to achieve a more seamless travel experience in the commercial aviation industry. Significantly, most advocate for global standards in an effort to incorporate uniformity in international aviation.100 (See Appendix K for a discussion tracing the history of several international initiatives relying on the collection and use of biometrics, including among others the ICAO DTC, the UN High Commissioner for Refugees Population Registration and Identity Management and EcoSystem, IATA and ACI Smart Security and New Experience Travel Technologies, and WEF Known Traveller Digital Identity.)
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58 Airport Biometrics: A Primer this principle advocates the accommodation of all legitimate interests and objectives in a win–win manner, not through a dated either/or approach where unnecessary trade-offs are made, and supports the position that it is possible to have both privacy and security.
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Legal, Policy, and Privacy Review 59 Commercial Developments A recent initiative that focuses on transparency, consumer education, and the mitigation of privacy concerns is the Digital Trust in Places and Routines (DTPR) .106 DTPR is a collaborative project initiated by Sidewalk Labs, currently stewarded by Helpful Places, and joined by more than 100 participants to develop a standard that informs and advises individuals in simple language about complex forms of technology and data-collection activities.
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60 Airport Biometrics: A Primer an assessment questionnaire, and an audit framework (World Economic Forum 2020c)
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Legal, Policy, and Privacy Review 61 • As a precaution, ensure that a mechanism is in place for notification of data breaches; and • Stay current on changing laws (both domestic and international) , try to anticipate foreseeable changes, and seek advice from counsel to appreciate and address any impacts on your company's use of biometric data.111 Endnotes 1.
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62 Airport Biometrics: A Primer Katz, 389 U.S. at 361 (Harlan, J., concurring)
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Legal, Policy, and Privacy Review 63 46. Cassidy v.
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64 Airport Biometrics: A Primer 71. For an extensive discussion of the Supremacy Clause and the doctrine of preemptions, see State v.
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Legal, Policy, and Privacy Review 65 104. See also Federal Trade Commission 2012b.
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