By Eric P. Haas
The United States government is continually developing and exploring better, more reliable methods of securing this nation’s airports in an effort to stay one step ahead of terrorists in the “war on terror.” Since September 11, 2001, the federal government has established the Department of Homeland Security (DHS) and, within it, the Transportation Security Administration (TSA), which is responsible for passenger security at the nation’s many airports. Commercial pilots are now able to carry handguns, and federal air marshals are standard on many domestic flights. Critics argue, however, that more security may still be needed. Recent developments include the implementation of United States Visitor and Immigrant Status Indicator Technology (US-VISIT) and Computer Assisted Passenger Pre-Screening (CAPPS II). Because terrorists are likely to become familiar with static security procedures over time, the government must continually respond by introducing newer, more advanced technologies. Recently the use of biometrics for identification and security has emerged as a promising new instrument in the “war on terror.”
Most people are familiar with biometric technology from what they have observed in science-fiction movies. The most recent film to showcase the possibilities of biometric technology was Minority Report. In the movie, people are continually subjected to eye scans so that computers are able to identify each person and then interact with the individual for purposes of targeted advertising, security clearance, and even law enforcement. In this futuristic movie environment, mandatory identification is the norm, and it is impossible for anyone to live in anonymity. However, for better or worse, the technologies of tomorrow are here today, and biometric identification systems are already being implemented in airports and other high-profile locales. Following the establishment of the TSA, Congress authorized the agency to “[p]rovide for the use of . . . biometric[s], or other technologies to prevent a person who might pose a danger to air safety or security from boarding [an] aircraft.” Although biometrics and other new technologies show great promise in creating a more secure community, the newfound security may be obtained at the price of an individual’s right to privacy and right to travel.
This paper will address whether biometric technology can effectively protect this nation’s airports and borders while still preserving fundamental constitutional rights. In order to evaluate the constitutional use of biometric technology, this paper will begin with a survey of the case law surrounding the right to privacy, the right to travel, and airport screening procedures. Part II will give an overview of biometrics and the most popular biometric identifiers. Part III will address current uses of biometrics and how the government plans to implement this technology in the near future. Finally, Part IV will advocate a test which the Supreme Court should adopt in future decisions concerning airport searches and how the test squares the competing interests of safety and privacy in the application of biometric technology.
Eric P. Haas, Back to the Future? The Use of Biometrics, Its Impact on Airport Security, and How This Technology Should Be Governed, 84 J. Air L. & Com. 459 (2019).