Right to Privacy: The Legality of Biometric Surveillance Under Criminal Procedure

Abstract

Biometric surveillance is an important tool in present-day criminal investigation. New technologies such as fingerprinting, facial characteristics, iris scanning, voice recognition etc., make it easier to carry out identification and to help agents in serious cases to investigate an offense. Meanwhile, the technologies raise unique privacy issues based on the close association of biometric traits with the identity of the person and the fact that they can be kept, searched and re-used after they are first collected. The legal question is thus when does biometric surveillance leave the realm of legitimate investigative investigation and become the term of the excess: "a disturbing interference by the State in the life of citizens?

The legal question is thus: when does biometric surveillance transcend into legitimate investigative investigation and when does it become a disproportionate state interference in the lives of citizens? The paper analyses the status and legal aspects of using biometric surveillance in the criminal procedure, focusing on the case of Pakistan and the progress made in other nations. It contends that biometric monitoring should be evaluated in the light of the criteria of legality, necessity, proportionality, accountability and effective remedy. The analysis shows that standard-police powers and the broad police surveillance provisions are not enough to comprehensively govern the entire life cycle of biometric data, especially the use of facial recognition tools in public places and the acquisition of information of people who are not suspected of Criminal offence. A significant patchwork of constitutional and statutory frameworks offers important foundations, but are out of sync with each other in Pakistan. The paper puts forward the need for and suggests a specific legal framework with statutory authorization, prior judicial authorization for intrusive surveillance, purpose limitation, data minimization, restriction on data retention, human verification, algorithmic accountability and effective remedies. It finds that while biometric surveillance has a legitimate role in the criminal justice, this role must not trump constitutional rights and due process.