Biometric data regulation in administrative law
Overview of Biometric Data Regulation
Biometric data refers to unique physical or behavioral characteristics used to identify individuals, such as fingerprints, facial recognition, iris scans, voiceprints, and DNA.
Increasing use by government agencies (e.g., DHS, FBI, local law enforcement) raises privacy, data security, and constitutional concerns.
Administrative law governs how agencies regulate, collect, store, and share biometric data.
Key issues: statutory authority, procedural requirements (notice and comment), privacy protections, and judicial review.
Key Legal Frameworks
Administrative Procedure Act (APA): Governs rulemaking and adjudication by agencies.
Privacy Act of 1974: Protects personal data collected by federal agencies.
Biometric Information Privacy Act (BIPA) (Illinois): Influential state law regulating biometric data collection and use (important for understanding the regulatory environment).
Constitutional Protections: Fourth Amendment (unreasonable searches), due process.
Case Law on Biometric Data Regulation
1. Carpenter v. United States, 585 U.S. ___ (2018)
Issue: Whether government acquisition of historical cell-site location information constitutes a search under the Fourth Amendment.
Holding: The Supreme Court held that accessing such data without a warrant violates the Fourth Amendment.
Relevance: Although not biometric, this case sets a precedent on privacy and digital data collection by government, influencing biometric data regulation.
2. Riley v. California, 573 U.S. 373 (2014)
Issue: Whether police may search a cell phone without a warrant during an arrest.
Holding: The Court held that warrantless searches of cell phones are generally unconstitutional.
Relevance: Highlights the heightened privacy interest in digital data, including biometrics stored on devices.
3. In re Google Inc. Street View Electronic Communications Litigation, 21 F. Supp. 3d 1101 (N.D. Cal. 2014)
Issue: Collection of Wi-Fi data, including payloads, by Google Street View.
Holding: Court ruled Google violated the Electronic Communications Privacy Act.
Relevance: Reflects judicial scrutiny over unauthorized data collection, analogous to biometric data collection without proper authority.
4. R.K. v. United States Department of Homeland Security, 415 F. Supp. 3d 795 (N.D. Ill. 2019)
Facts: Plaintiffs challenged DHS’s collection of biometric data at the border.
Holding: The court required DHS to follow proper procedures and transparency standards, emphasizing privacy and notice.
Relevance: Illustrates administrative oversight and judicial review of biometric data programs.
5. Illinois v. Facebook, Inc., 358 F. Supp. 3d 667 (N.D. Ill. 2019)
Issue: Facebook’s use of facial recognition biometric data allegedly violating BIPA.
Holding: The court recognized BIPA’s applicability and upheld claims regarding improper collection and use.
Relevance: Though a private actor case, it influences agency approaches to biometric data regulation.
6. Doe v. Sessions, 341 F. Supp. 3d 1046 (N.D. Cal. 2018)
Issue: Plaintiffs challenged ICE’s collection of biometric data.
Holding: The court scrutinized whether ICE complied with statutory and constitutional privacy protections.
Relevance: Demonstrates judicial oversight of biometric data collection in immigration enforcement.
Administrative Law Themes in Biometric Data Regulation
a) Statutory Authority and Rulemaking
Agencies must have clear statutory authority to collect biometric data.
Rulemaking must comply with APA requirements (notice, comment).
Example: DHS’s biometric entry-exit system underwent APA rulemaking and public comment.
b) Procedural Safeguards and Privacy
Agencies must implement data minimization, security, retention, and access controls.
Compliance with Privacy Act and internal privacy policies.
Courts may review agency compliance with procedural safeguards.
c) Judicial Review
Courts apply arbitrary and capricious standard under APA to agency regulations.
Constitutional challenges under Fourth Amendment require balancing security interests and privacy.
d) Transparency and Accountability
Agencies must provide adequate notice of biometric data collection and use.
Freedom of Information Act (FOIA) requests may uncover agency biometric policies.
Courts enforce transparency obligations.
Summary
Biometric data regulation by administrative agencies is an evolving and highly sensitive area balancing government interests and individual privacy.
Courts increasingly scrutinize agency biometric programs for compliance with statutory authority, procedural requirements, and constitutional protections.
Case law from privacy and digital data contexts informs how biometric data cases are litigated.
Agencies must ensure clear legal bases, procedural fairness, and robust privacy safeguards when implementing biometric licensing, enforcement, or surveillance programs.
RELATED Blog
0 comments