Document Type

Article

Publication Date

2024

Abstract

Scientific and technological advances in the latter part of the 20th century catapulted biometrics forward. Thus, Carleton Simon in 1935 may have postulated using retinal vasculature for biometric identification. But it took forty years for an Eyedentify patent to bring the idea to fruition. In 1937, John Henry Wigmore similarly anticipated using oscilloscopes to identify individuals by speech patterns. Decades later, digitization and speech processors made voiceprint identification possible. Biological discoveries led to the adoption of deoxyribonucleic acid (DNA) sequencing. And while Alphonse Bertillon in the late 19th century postulated iris distinctions, it was only in 1991 that John Daugman patented a means of extracting and encoding their unique patterns.

In this century, as algorithmic sciences, big data analytics, and artificial intelligence (AI) have gained ground, the landscape again has radically altered. The range of collectable Physiological Biometric Characteristics (PBCs), which measure innate human traits, has exploded. The legal literature lags far behind, with almost every treatment of biometrics limited to a few PBCs, such as fingerprinting, facial recognition technology (FRT), or DNA. Nor have scholars considered the rapid expansion in Behavioral Biometric Characteristics (BBCs), biologically-grounded habits and proclivities. Instead, just a handful of pieces focus on one or two BBCs. Yet thousands of scientific articles over the past fifteen years have focused on how to collect, analyze, and use PBCs and BBCs. Hundreds of thousands of patent applications have kept pace.

Not only has legal scholarship largely missed the depth and breadth of information that can be collected, analyzed, and deployed, but it has overlooked a related and concerning new practice: biomanipulation, which I define as the use of biometric data to identify, analyze, predict, and manipulate a person’s beliefs, desires, emotions, cognitive processes, and/or behavior. Concern about consumer manipulation, of course, has been around for decades, with a recent spate of articles focused on the digital world. But the role of biometric data in presenting an immediate, more personalized, and more concerning form, of insight and control, has gone largely unnoticed.

Publication Citation

Georgetown Law Journal, Vol. 113, Forthcoming.

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