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Legal Concerns With Iris Scanning and Biometric Tech

By George Khoury, Esq. | Last updated on

With how fast technology is advancing, don't blink, or you might miss it. At least with iris scanning technology, opting out might be as simple as closing your eyes, but that might not be a great idea if you're out in public, or behind the wheel of a car. It may not be being used by law enforcement on the general public quite yet, but the technology is here that would allow a cop to scan your iris through your car's side-view mirror.

With the soon to be released IPhone X implementing a facial recognition scan, and long range iris scanning becoming a currently available technology, it's high time we asked: what are the major legal concerns with using biometrics, like an iris scan. Should we be comfortable with our smart phones scanning us?


When it comes to a person's biometrics, though the Fourth Amendment may not protect a person from being photographed by the government while in public, and the First Amendment may allow another person to photograph nearly whomever they'd like while in public, but state law privacy rights might take issue with biometric scanning of those who do not consent.

Though individuals may be all too happy to use biometrics to bypass passwords, or otherwise make their life more convenient, studies have shown that people do not like the idea of remote biometric scanning that they are unaware of. However, the benefits of law enforcement having access to that level of sophisticated tech when dealing with an emergency situation or large crowds is an entirely different issue than allowing advertisers to collect biometrics in order to identify and bombard you with specialized ads.

Like a Fingerprint?

The biometric key or password presents an interesting dilemma in that a person's devices can be secured by their body which isn't protected under the Fifth Amendment.

However, when it comes to a device password, courts have ruled that fingerprints must be provided to unlock an electronic device, but that an alpha numeric style written password could not be compelled thanks to the Fifth Amendment.

Basically, because the Fifth Amendment protects a person from being compelled to testify, courts find that the collection of visual data, such as biometrics, is not a testimonial act. An iris scan would likely be even less protected under the Fifth Amendment or Fourth Amendment than a fingerprint, however, a combination of biometrics and language might make for an even more interesting test.

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