Biometric Data and the Fourth Amendment: Privacy in the Digital Age

Zachary Pyers is joined by Reminger Law Clerk, Awa Camara, for an exploration of the complex world of biometric data and its implications for privacy rights under the Fourth Amendment. Join us as we explore how advancements in technology intersect with constitutional protections against unreasonable searches and seizures. 

Be sure to check out the video version of this interview on our YouTube page.

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Transcript

REMINGER REPORT PODCAST ON EMERGING TECHNOLOGIES

Biometric Data’s Potential and Fourth Amendment Violations
 with Awa Camaro

ZBP      Zachary B. Pyers, Esq.
 AC        Awa Camara

 | ZBP | Welcome to the most recent episode of the Reminger Report Podcast on Emerging Technologies.  I am Zach Pyers and I am excited today to have one of the law clerks who has been working with us recently join us for a special episode of the Reminger Report Podcast.  Today’s topic is going to be Biometric Data’s Potential and Fourth Amendment Violations.  We are fortunate to have Awa, one of our law clerks, with us today.  Awa, could you go ahead and just introduce yourself to the audience.
| AC | Yes.  Hi everyone.  My name is Awa Camaro, and I’m a rising 3L at St. John’s University School of Law in New York City.  As Zachary said, I am one of the law clerks in the Columbus office at Reminger and I am excited to be here.
| ZBP | Well, we’ve been excited to have you.  Now, tell me a little bit.  Obviously, biometric data is one of the things that we are talking about, and Fourth Amendment violations usually come in the form of, when we think about Fourth Amendment violations, we think about search and seizure.  We think about almost criminal law or criminal law related, which is something that frankly is a little bit outside of my area of expertise in civil litigation and liability.  So, if you would, just provide us a quick summary of the topic that you looked at and researched and that we are going to talk about today.
| AC | Yes, absolutely.  So I researched the potential Fourth Amendment violations associated with biometric data, especially when it comes to airports and their usage of biometric data of passengers.  Biometric data includes fingerprints, palm prints, photographs, signatures, voice prints.  Basically, anything that you can think of.  And I came across this article where critics were arguing that biometric data has the potential to reveal information about passengers that violate their rights to be safe from unreasonable searches and seizures which is a right protected under the Fourth Amendment and the issue is that while biometric data helps with identification, it can also reveal medical conditions that not everyone feels comfortable revealing to the government or anyone else for that matter.
| ZBP | How did you come up with and how did you decide that this was the topic that you were going to cover, that you wanted to research and talk about?
| AC | So I’m somebody who flies a lot.  I love to travel and explore different countries or cities.  So I’m regularly exposed to those security measures at the airport and on my last trip back to Columbus, I was just thinking to myself, leaving a line to go through one of those security scans, and I was just wondering, I wonder what type of information is stored, how long it’s kept, and what do they do with that.  So when it came to finding a topic that connects both technology and the law, I automatically thought of that.  I think it’s an interesting topic that effects many of us, especially because technology keeps evolving and whether we know it or not, it’s always surrounding us.
| ZBP | Obviously, whenever we talk about privacy, there are people who are on both sides of the aisle on this one, right?  We have people who are of the opinion that, you know, they are very, very private individuals.  They want their privacy protected.  I always tell the story that my wife’s grandfather always used to shred every piece of mail he would get because he didn’t want his home address to be circulated out in the public.  And I still remember when my mother-in-law showed him that all of that information was available out of the phone, on the internet.  And she said, “well I can find your address by looking up here.”  And he was trying to figure out as quickly as possible how to delete that information from the internet.  And so we have these people who are on one end of the privacy spectrum, right, who want their privacy always protected and as secure as possible, and then we have other people at – and I think we’ve seen this come at a cultural shift sometimes with demographics or sometimes with ages – where people will say, you know what, I don’t really care.  I don’t have anything to hide.  I’m sharing everything anyways with the world.  So if you can, knowing and understanding that in society we’ve got both ends of the spectrum, explain why the critics think that the use of some of these biometric issues as it relates to airport security, but we know that they are used in other aspects as well, but specifically why do they think they violate, kind of, the constitutional Fourth Amendment?
| AC | Yes.  So while biometrics help with identification, they reveal much more than just the identity of somebody.  For example, retina scans.  They can reveal medical conditions such as pregnancy, high blood pressure and Aids.  And fingerprints have been linked to revealing chronic diseases and other medical conditions.  So the revelation of such sensitive information in American airports or in other scenarios, they could constitute an intrusion and a Fourth Amendment violation if certain conditions are met.  The Supreme Court established that collecting and analyzing biological samples is considered a search under the Fourth Amendment.  And you can make an argument that the biometric data, such as biological samples, that they also include physical samples.  So in order for it to be a Fourth Amendment violation, those searches, which the Supreme Court has established, they need to be unreasonable and they need to include government action.  So to say that they include government action at the airport is simple because the staff at the airport, they are required to do these scans for every passenger that comes through, so the government is involved in that way.  And now in terms of the reasonableness, the article that I found, it ultimately concluded that the searches are reasonable rather than unreasonable because the searches, they are done to identify national security threats at airports, which is extremely important.  So even individuals who worry about their privacy when you ask them what is more important, privacy or national security, many of them will say national security is more important.  So it’s considered reasonable.  So the conclusion of that article is that it ultimately is not a violation because it’s not considered unreasonable.
| ZBP | And what are your thoughts?  Do you have an opinion as to whether biometric data should be used or should not be used in the airports?
| AC | Yes.  So I was definitely grappling with my thoughts, looking at different sources to come up with my personal opinion.  But I also think that when you look at privacy and national security, you always want to make sure that you are safe and sometimes your privacy may be compromised.  But you just want to make sure that safety comes first.  So I do think that it’s not a violation, and the searches that they are doing at the airport, they do make sense.  However, I think it’s important to make sure that the data is only used for identification and that it’s not stored for unreasonable amount of times.  I just know the last time that I was at the airport, some of the scans – they have signs where they say, “we are going to take a picture of you right now but it’s not going to be stored for a long time.  So I think having disclaimers at the airports such as those help people feel more comfortable.  But I think it’s definitely necessary because first priority is to keep everybody safe.
| ZBP | Awa, I appreciate you taking the time to speak with us today and researching this topic and joining us on the podcast.
| AC | Absolutely.  Thank you so much for having me.
| ZBP | Thank you.