Abstract
Ethical issues raised by forensic biometrics partly overlap with general ethical implications of biometrics. They include issues related to collecting, processing, and storing, personal data, privacy, medical information, and respect for body integrity, risks of misuse and subversive use, and respect for human dignity. There are, however, also ethical issues specifically raised by forensic biometrics. One of them is particularly intriguing. It concerns the nature of biometric evidence and to what extent biometric findings could be accepted as an evidence in court. At a first glance, this problem could seem purely legal, without major ethical implications. Yet, at a deeper analysis, it turns out to have significant ethical components. I will focus on them and on some recent policy developments in this field.
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Notes
- 1.
“Scientific evidence” in court is an evidence that is inferred from a known fact by using the scientific method.
- 2.
Physical properties are discrete elements that can be put in bi-univocal correspondence with a set of numbers. There are seven base physical properties, Length, Mass, Time, Electric Current, Temperature, Amount of Substance, and Luminous Intensity. Biometric sensors measure one or more of these properties.
- 3.
Daubert v. Merrell Dow Pharm. Inc., 727 F. Supp. 570, 575 (S.D. Cal. 1989).
- 4.
“Digesta seu Pandectae 22.3.2” (http://webu2.upmf-grenoble.fr/Haiti/Cours/Ak/Corpus/d-22.htm).
- 5.
Presumption of innocence is mentioned for instance by Italian, French, German, Brazilian, Canadian, Russian constitutions. It is not explicitly mentioned by the US Constitution, yet there is a consensus that it follows from the 5th, 6th, and 14th amendments.
- 6.
Beyond similarity scores, there are also other mathematical tools used for comparing two biometrics, but this would not change the sense of my example.
- 7.
The biometric performance at different thresholds is expressed through the "Detection Error Tradeoff" (DET) curve.
- 8.
To give an idea of the magnitude and pervasiveness of this phenomenon, it is enough to mention that the Internet is today the main source of evidence on marriage validity or nullity in Catholic ecclesiastic courts.
- 9.
Sex, ethnicity, age, body shape, skin color, and so.
- 10.
In his 2003 paper on Evaluation of Forensic Science [18], Arizona State University Professor of Law, Michael J. Saks, raised the issue of reversal of the burden of proof related to biometric evidence. His argument is different from mine, because he focuses on the fact that some courts are asking the defendant to demonstrate that biometric evidence does not fulfill Daubert criteria, instead of assessing by themselves whether it does. However, it is interesting to note that trends move in the same direction.
- 11.
COM(2013) 821 final, Brussels, 27.11.2013.
- 12.
COM(2013) 820 final, Brussels, 27.11.2013.
- 13.
European Court of Human Rights.
- 14.
European Parliament Committee on Civil Liberties, Justice and Home Affairs.
- 15.
European Parliament Committee on Legal Affairs.
- 16.
Council of the European Union, 12196/14, Brussels, 29 July 2014.
- 17.
It is worth recalling that the issue of presumption of innocence has been one of the main issues at stake in the US legal, political, and ethical debate on war on terrorism and terrorists’ detention.
- 18.
My italics.
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Mordini, E. (2017). Ethics and Policy of Forensic Biometrics. In: Tistarelli, M., Champod, C. (eds) Handbook of Biometrics for Forensic Science. Advances in Computer Vision and Pattern Recognition. Springer, Cham. https://doi.org/10.1007/978-3-319-50673-9_16
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