Washington and Lee University - School of Law

Date Written: December 16, 2016


Abstract

This Article addresses the rapid growth of what the military and intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence system is reliant upon biometric databases — for example, digitalized collections of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to describe more accurately the manner in which this new tool is dependent upon cybersurveillance and big data’s mass-integrative systems.

To better understand the legal implications of biometric cyberintelligence, this Article advances three primary claims. First, it argues that the technological and programmatic architecture of biometric cyberintelligence can be embedded within the data collection and data analysis protocols of civilian governance and domestic law enforcement activities. Next, to demonstrate the potential lethality of this emerging technological and policy development, this Article illustrates how biometric data may be increasingly integrated into drone weaponry, including targeted killing and drone strike technologies. Finally, this Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, may be impotent in light of the growth of cybersurveillance.

Maintaining strict separation of data between military and intelligence operations on the one hand, and civilian, homeland security, and domestic law enforcement agencies on the other hand, is increasingly difficult as cooperative data sharing increases. The Posse Comitatus Act and constitutional protections such as the Fourth Amendment’s privacy jurisprudence, therefore, must be reinforced in the digital age in order to appropriately protect citizens from militarized cyberpolicing, i.e., the blending of military/foreign intelligence tools and operations and homeland security/domestic law enforcement tools and operations. The Article concludes that, as of yet, neither statutory nor constitutional protections have evolved sufficiently to cover the unprecedented surveillance harms posed by the migration of biometric cyberintelligence from foreign to domestic use.



JEL Classification: K10, K14, K42

Suggested Citation:  

Hu, Margaret, Biometric Cyberintelligence and the Posse Comitatus Act (December 16, 2016). Washington & Lee Legal Studies Paper No. 2016-14. Available at SSRN: https://ssrn.com/abstract=2886575 or http://dx.doi.org/10.2139/ssrn.2886575