Last Friday, a Utah House committee passed a bill that would prohibit police from using a person’s biometric data to gain access to their electronic device. The bill would not only privacy in Utah; it would also hinder one aspect of the federal surveillance state.
Rep. Adam Robertson (R-Provo) introduced House Bill 438 (HB438) on Feb. 27. The legislation would prohibit law enforcement from using an individual’s biometric information to access an electronic device protected by biometric security. Biometric information includes “facial recognition, iris recognition, fingerprint scanning, voice recognition, hand geometry, and any other method of using physical characteristics to authenticate an individual in order to secure the individual’s electronic device.
There are no exceptions to the ban.
House Law Enforcement and Criminal Justice Committee passed HB438 passed by an 8-0 vote.
During the committee hearing, Robertson said it was both a matter of protecting “persons, papers and effects” from unreasonable search and the right not to incriminate oneself.
“It is undeniable that being compelled to provide access to an electronic device could be self-incriminating,” he said.
Robertson argued that even with a warrant, a person should not be compelled to open their own device and potentially incriminate themselves. As an example, he said police could open a safe with a warrant by using a key of physically breaking the lock. But this would not involve compelling the owner of the safe to do anything.
“To open an electronic device by forcing a fingerprint, to open a biometrically protected device is clearly a compulsory act. The resulting access and production of potentially incriminating evidence is a violation of the Fifth Amendment.”
By limiting access to a person’s personal data, the passage of HB438 would also help limit the federal surveillance state.
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
Limiting access to electronic data at the state and local level also limits the amount of information that can be shared with the federal government through the ISE.
HB438 was referred to the House Rules Committee where it must pass by a majority vote before moving to the full House.