IEEE Technology and Society Magazine - September 2017 - 44

an interference with privacy..." [21].
Compulsory medical examination
also constitutes an interference
with the right to private life under
the ECHR. The ECtHR has held that
"any medical intervention against
the subject's will, or without the free,
informed and express consent of the
subject, constitutes an interference
with his or her private life" [22]. The
notion of consent to examination for
the purposes of a biometric system is
not clear. In certain contexts people
are deemed to have provided their
consent to submit to biometric examination, such as in airports when
passing through an ePassport Gate.
(ePassport Gates are a variety of automated identity verification system
used by the United Kingdom's Border
Force: https://www.nidirect.gov.uk/
ar ticles/using-epasspor t-ga tesairport-border-control.) One could
question the quality of that consent,
since a person in that context will be
forced to choose between consenting to biometric examination and
not traveling. In the case of covert
biometric systems, no such consent
would be obtained.
The HRC has considered the issue of compulsory medical examinations, in the context of mental
health testing [21]. The key feature of
the decision for present purposes is
that the Committee observed that the
compulsory measure must be "reasonable in the particular circumstances of the case" [21]. In essence,
that involves a consideration of the
facts or circumstances that have
prompted the compulsory examination. One case before the HRC concerned the question of whether a
person's conduct in court proceedings was a sufficient basis to compel
them to submit to a mental health
assessment. The HRC held that that
conduct was an insufficient basis
[21]. The ECtHR has made similar
observations about the requirement
of a sufficient basis to intrude on a

person's right to privacy [19]. Determining whether there is such a sufficient basis will also take account of
the degree of intrusion: as the intrusion becomes more severe, so too
does the burden on the state to show
a sufficient basis.
These conclusions are similarly
problematic for biometric surveillance. For a biometric system to identify people, it requires the enrolment
of a large number of people onto a
database to be able to subsequently
identify people. In essence, a biometric
system captures personal health information and stores it. Once operating,
the system performs subsequent
examinations of people and analyzes
the information it collects. Consequently, the collection and retention
of personal information is not based on
specific facts relating to individuals, but
is based on biometric systems' need
for a library of unique biometric data.
That runs counter to the idea that a
person's circumstances might warrant
the capture of their specific biometric
data. Instead, a biometric surveillance
system is in part predicated on the
idea that a person may do something in the future that makes their
future identification desirable. Moreover, the motivation to have a more
reliable system goes hand in hand
with capturing more biometric data. As
more biometric data is recorded, the
possibility of falling short of human
rights standards increases.
The ECtHR has addressed the
issue of compulsory collection and
retention of fingerprint, DNA, and
cellular samples for persons arrested
for, but not convicted of, a crime [13].
Ultimately, the ECtHR concluded that
"the blanket and indiscriminate nature
of the powers of retention of the fingerprints, cellular samples and DNA
profiles of persons suspected but not
convicted of offences ... fails to strike
a balance between the competing
public and private interests" [13]. The
case indicates that the compulsory
IEEE TECHNOLOGY AND SOCIETY MAGAZINE

acquisition and retention of biometric data of non-criminals may violate
the right to privacy. The ECtHR's conclusion was influenced by the period
of retention of that data, and also by
its character as health information.
Importantly, the ECtHR gave greater
weight to DNA information than fingerprint information. This indicates
that where more significant health
information is collected by a biometric system, there is a greater burden of
demonstrating that the interference is
proportionate. Data collected by ECG,
EKG, or DNA samples, for example,
may interfere more substantially with
the right to privacy than the mere
collection of fingerprints.
In addition to these limits, the
ECtHR has held that if private information, like biometric data, is collected for one valid purpose, then
that information cannot be shared
and used for other purposes [23].
That would restrict states from validly collecting biometric data by consent at, say, a border control point
and then sharing that data for the
purposes of covert surveillance.

Right to Privacy Challenges:
Data Retention
Personal data retention is integral to
the operation of a biometric system.
Some systems, such as a smartphone, require no data beyond a
specific user's information. In a larger, multi-user system however, multiple personal data sets will obviously
be required. Moreover, in the surveillance context where TTL is an objective, the subjects of a given system
will necessarily have their personal
data stored. A biometric template,
as defined above, is the means by
which a biometric system identifies
people. The HRC has affirmed that
data retention is an issue within the
scope of the right to privacy [24].
Retaining personal information can
amount to an interference with the
right to privacy under article 17 [13].
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SEPTEMBER 2017

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