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Due process questions dominate proposed biometrics law and state supreme court cases

Due process questions dominate proposed biometrics law and state supreme court cases

Privacy advocates are focusing on proposed state-wide biometrics restrictions in Massachusetts and a Michigan Supreme Court case specifically dealing with how police use fingerprint scans.

Backers of the Massachusetts legislation want to greatly restrict how state agencies use all varieties of biometrics for surveillance and other roles.

Governor Charlie Baker is on record as hostile to least some of the provisions of House bill 135/Senate bill 47. The bills have been referred to the state’s Senate/House joint judiciary committee.

Meanwhile, Michigan Supreme Court justices are deliberating two cases involving separate incidents in which Black minors were stopped while they walked along the street by Grand Rapids police operating without cause.

Opponents of warrantless — or even probably cause — collection of biometric information want the justices to stop the practice.

In 2011, a boy who was 15 at the time was detained and fingerprinted at a bus stop. In 2012, a 16-year-old boy was walking home from school when he was detained and fingerprinted for entry into the Automated Fingerprint ID system.

Both the Massachusetts legislation and the Michigan court cases hinge significantly on questions of due process, something that biometrics vendors are happy with, because they are off the hook when it comes to use policies.

(Happy, maybe. There are other reasons for vendors in the supply chain to worry.)

But due process — rules governments must follow with respect to an individual’s rights — is one of the more emotional angles on biometric surveillance. The fastest way to create a civil liberties advocate would be to detain a law-and-order conservative and hold them until they consent to face, finger, voice or other print collection.

The Electronic Privacy Information Center, or EPIC, and the Massachusetts branch of the American Civil Liberties Union have testified in favor of the proposed state law.

EPIC made the point that face biometrics are easy to deploy covertly and at considerable scale and, yet, there is no specific statutory authorization in Massachusetts law.

Due process is fundamental to Western law, but does not yet adequately protect against modern searches and seizures in the form of automated, indiscriminate capture of people’s biometric data.

There are protections against outright abuse of the powerful systems and compensation for abuse, misuse and incompetence.

At least in the opinion of privacy advocates, the cases before the Michigan Supreme Court could fall under that heading.

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