Columbus School of Law

By now, most Americans realize that every swipe of a credit or debit card tells some marketer, somewhere, all about their buying preferences. It’s informational gold to retailers.

 

But many people are still not aware if you walk down nearly any street in a major American city, you can safely presume that you are being captured on camera. Moreover, state-of-the-art facial recognition technology is busy mapping and storing the contours of your face, data that can be retrieved later by law enforcement or retailers indefatigably in pursuit of your money.

 

The law says almost nothing about this practice, and that was the crux of “The Tracking Clash: The Judicial, Legislative and Executive Branches Grapple with U.S. v. Jones and the Use of Geolocation and Biometric Tracking,” a program conducted by The Catholic University of America Columbus School of Law on Nov. 15, 2012 at the National Press Club in Washington, D.C.

 

Conceived and organized by law school alumna Anne McKenna, Class of 1994, partner, Silverman|Thompson|Slutkin|White|LLC, and chair of the firm’s Internet and Privacy Law Practice Group, the panel discussion focused on the need for Congress, the judiciary, and the administration to work in concert to fashion a coherent policy regarding the use of biometric and geolocating technologies.

 

“Biometrics does for the human body what cookies do for computers. It’s the ultimate, most invasive form of tracking,” said McKenna, who is co-author along with Catholic University law school Professor Clifford Fishman of Wiretapping and Eavesdropping, 3d Ed.  “We may be five or ten years from a biometrics case coming to court, but this is happening now.”

 

At this point, lawmakers are not much more evolved in their understanding of the technologies involved than the general public, noted Janet C. Fisher, general counsel for the House Permanent Select Committee on Intelligence.

 

“Congress hasn’t made up its mind. What standards should be in place? You can’t legislate for future technology, so what to do is unclear,” she said.

 

Several bills have been drawn up in Congress that attempt to strike a balance between preserving constitutional liberties while enabling the government to use available technology to protect people and institutions. None are especially close to a vote yet.

 

It could be that a court ruling will precede action from the legislative branch, said Kannon K. Shanmugam, a partner with Williams & Connolly LLP and former law clerk to Supreme Court Justice Antonin Scalia.

 

“We’re in a time of heightened sensitivity to all of this information collection. I’m not sure any of us really understand how much is being collected,” said Shanmugam. “The question now is how eager are the courts to reach out and start settling some of these issues?” 

The panel’s moderator, Maryland Court of Appeals Judge Joseph F. Murphy Jr. (Ret.), suggested that like the oversight of alcohol consumption or driver’s licenses, laws restricting the use of biometrics or other technologies to track citizens may wind up being regulated state-by-state.

 

In the meantime, what can one do who wants to shake off Big Brother from perpetually peering over his shoulder?   
 

In today’s world, it’s very difficult to live “off the grid.” Catholic University law professor Clifford Fishman, who completed the afternoon’s panel, thought future laws should concentrate on deciding what issues of personal privacy remain out of bounds.

 

“Instead of trying to restrict technology, let’s define what information should remain off-limits, no matter how it’s gathered,” said Fishman.

 

A summary of of the symposium was published on Nov. 20 in the Legal Times.