IEEE Technology and Society Magazine - September 2017 - 42

systems; and the determination of
friend or foe in military installations"
[4]. The collaborative use of biometrics in a surveillance context has contributed to public counter-terrorism
successes like the identification of
Mohammed Emwazi, or "Jihadi
John," of the Islamic State [5]. The
United States has reported other
successes arising from the use of
biometrics, such as gathering improvised explosive device intelligence [6]
and counter-piracy operations [6, p.
31]. In Australia, biometrics have
become a central feature of border security and identity management policy. (See, e.g., the recent
expansion of authority to use and
compel persons to submit to biometric identification in Australia in the
Migration Amendment (Strengthening Biometrics) Act 2015 (Cth).)
In short, biometric technologies
are the subject of increasing adoption
by military, intelligence, and national security institutions. These technologies are deployed in domestic and
foreign contexts for a series of security-related purposes. A useful example
is in the process known as Tagging,
Tracking, and Locating (TTL). The
U.S. military in particular is pursuing
the combination of biometric technologies and unmanned vehicles
for TTL [7], [8]. In this context, biometrics form part of a broader strategy that incorporates identification
through biometric technologies with
other ISR methods to identify, track,
or profile a given person.
Unsurprisingly, biometric technologies raise privacy issues. More
specifically, it is uncertain how those
technologies interact with human
rights relating to privacy. Depending
on the nature and implementation
of a given biometric technology, the
use of such technology might violate
a state's international human rights
obligations. The permissibility of a
government measure is most commonly determined through a multi-stage

analysis that requires the measure to
have, among other things, a "legitimate aim." Security, or national security and public safety, are often the
legitimate aims that governments rely
on when the human rights compliance of their surveillance programs
is challenged. Surveillance is not a
legitimate aim in itself; rather, surveillance is one method of pursuing the
goal of regional, national, or international security.
It is important to appreciate the
relationship between surveillance
and security. David Lyon defines surveillance as "the focused, systematic,
and routine attention to personal
details for purposes of influence,
management, protection, or direction" [9]. Lyon's definition refers to
a process that captures individuals'
personal details, in an organized or
targeted manner, that also "occurs as
part of everyday life" [9]. Since 9/11,
domestic security arrangements have
increased in complexity to match the
perceived threat of terrorism [10]. The
problem is, however, that in response
to threats such as terrorism, "the
perception of which counterterrorism tools would be most effective is
shaped less by objective or rational
discussions of efficacy or efficiency
than by ... vested interests and the
culture of risk mitigation" [10, p. 558].
Biometrics can be a form of "security
theater" that creates a visual and dramatic perception of security to maintain public confidence [10].
The criticisms of increased implementation of biometrics become
less valid as biometric technology
improves. For present purposes,
it suffices that the human rights
implications of a biometric system
used for surveillance purposes will
necessarily depend on the security
outcomes or "dividends" of such
a system. That is because compliance with human rights law will also
depend on a proportionality assessment that, in essence, weighs the
IEEE TECHNOLOGY AND SOCIETY MAGAZINE

intrusion upon a human right against
the achievement of a legitimate government aim.

Biometrics and the Right
to Privacy
Introducing the Right to Privacy
Article 17 of the International Covenant on Civil and Political Rights is
one source of the right to privacy.
Most states engaging in advanced
surveillance are parties to that treaty
[11]. The scope and content of the
right to privacy, in the context of surveillance, is not well defined. This is
problematic, given the Human Rights
Committee's (HRC) view that "governmental mass surveillance is
emerging as a dangerous habit rather
than an exceptional measure" [12].
Three principal aspects of biometric
surveillance engage article 17: first,
its character as a form of surveillance; second, its character as a form
of medical examination; and third,
the data retention that it requires.
Given the limited practice of the HRC,
this paper draws on the scholarship
and jurisprudence on article 8 of the
European Convention on Human
Rights and Fundamental Freedoms
(ECHR). Although the literal terms of
article 8 of the ECHR and article 17 of
the ICCPR differ, article 8 is a useful
guide to interpreting article 17.
The terms of article 17 are "broad
and vague" [11, p. 83]. The European Court of Human Rights (ECtHR),
when considering the right to privacy under the European Convention, has observed that that "the
concept of 'private life' is a broad
term not susceptible to exhaustive
definition. It covers the physical
and psychological integrity of a person ... [embracing] multiple aspects
of the person's physical and social
identity ..." [13]. The "interference
with... privacy" under article 17 of
the ICCPR can likewise include a
spectrum of activities. Importantly,
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