IEEE Technology and Society Magazine - September 2017 - 43

privacy is regarded as a "fundamental precondition to, and guarantor of, other rights" [14]. Fernando
Volio argues that the reference to
"no one" in article 17 emphasizes
the fundamental character of the
right, which may not be denied to
any person [15].

tem could also reveal certain health
information, for example by way of
iris scan [16]. It is uncontroversial
that health information is personal
information, for the purposes of the
right to privacy [13]. More advanced
biometric systems, such as the ECG
or X-Ray biometric systems [17], would
provide even more information about
a person's health.
The 'menace of surveillance' is
an additional issue that surveillance
programs pose to the right to privacy [18]. For example the ECtHR
considered the lawfulness of a German surveillance program during
the Cold War [18]. In that case, the
Court observed that even where surveillance is not directed at a specific
person, the existence of large-scale
surveillance programs has a chilling
effect on the exercise of other fundamental rights, like freedom of expression [18, p. 16]. In a later case the
ECtHR connected the surveillance of
communication to an inhibition of
the exercise of free expression [19].
Biometric surveillance could enable
a state to identify and track a person, and also record their activities
in locations where they are identified. Applying the logic evident in
the ECtHR's jurisprudence, the mere
threat of widespread biometric surveillance could interfere with rights
beyond privacy, such as the right to
political expression or association.
(The ECtHR in Klass v Germany
[18] observed that a "menace of surveillance" could discourage subjects
of that surveillance from engaging
in certain forms of speech, contrary
to the right of freedom of expression. Abstracting that reasoning, one
could reasonably argue that surveillance can discourage the exercise of
certain rights where the surveillance
might capture or record the relevant
activity. In the context of biometrics,
surveillance could interfere with the
association of certain individuals if
they are subject to program of bio-

Right to Privacy Challenges:
Surveillance
Foremost, biometric surveillance is a
species of surveillance. Surveillance
of persons who are owed obligations
under the ICCPR typically engages
article 17. This article does not prohibit states from conducting surveillance; rather, the lawfulness of a given
surveillance program will depend on
its specific circumstances.
In its resolution The Right to Privacy in the Digital Age, the United
Nations General Assembly acknowledged that technological develop ments have enhanced states'
capacities to engage in surveillance
that could breach article 17. Addressing the issue of metadata surveillance, the resolution identified the
risk that certain personal information may be captured, including
"[insights] into an individual's behavior, social relationships, private preferences, and identity." In its 2014
report, the HRC echoed the concerns
about metadata surveillance, given
that it "allows very precise conclusions to be drawn concerning the private lives of the persons whose data
has been retained" [14]. That logic
applies to biometric surveillance.
Biometric surveillance is capable of
revealing personal information. Once
a person has been identified, an integrated biometric system could use
that person's identity to monitor their
activities. Moreover, an integrated biometric surveillance system, including
public CCTV systems, could readily
establish information about a person's travel, employment, social, and
cultural habits. Further, such a sysSEPTEMBER 2017

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IEEE TECHNOLOGY AND SOCIETY MAGAZINE

metric identification that might capture or record their activities.)

Right to Privacy Challenges:
Medical Examination
Biometric surveillance raises an
additional issue under article 17 of
the ICCPR given that the processes
involved in biometric analysis may
constitute medical examinations.
Biometric processes analyze physiological data, and may also reveal
certain health conditions [16, p.
650. Irma van de Ploeg characterizes
biometric analysis as a form of medical examination [20]. She considers
biometrics to be a "fundamental philosophical and normative challenge
posed by [the] informatisation of the
body," and ties that challenge to "concepts of informational privacy and
personal data protection" [20, p. 180].
Biometric technologies applied
in the surveillance context are not
entirely analogous to the typical
human rights conception of medical
treatment. However, the key common
ground with biometrics in surveillance is compulsory medical examination. In a surveillance context, a
person's consent to the acquisition of
their biometric data is almost always
moot. The medical examination jurisprudence provides a set of principles
that can inform an evaluation of biometric technologies' interaction with
human rights standards. In particular, that jurisprudence considers the
particular value inherent in information pertaining to a person's body.
Reliance only on cases concerning
surveillance directly would fail to capture the issues peculiar to health and
bodily information.
Article 17 encompasses compulsory, or non-consensual, medical
examinations. The HRC has ob served that that "under article 17...
to subject a person to an order to
undergo medical treatment or examination without the consent or against
the will of that person constitutes

Table of Contents for the Digital Edition of IEEE Technology and Society Magazine - September 2017