This past week we watched the first half of Avalon, and then fast forwarded to a present day immigration issue in America: Biometrics. Our guest speaker from the FBI who spoke to us about the use of biometrics, I must say, served as an eye opener. As a group, we must seriously consider its growing use in the United States, as it is likely to replace other security measures such as online passwords or PIN numbers...

Our speaker lauded its use. And he certainly may be correct. There is no doubt that the use of biometrics has assisted in the arrest of many criminal aliens. As our guest speaker noted, the impartialty of the data obtained certainly avoids certain potential stereotypes. Many of these sterotypes joined with the use of Biometrics--unfortunately-- as we will read about-- have been used to profile certain immigrants in law enforcement operations ("Special Registration" of Mostly Muslim non-immigrants). Our guest speaker has been in the trenches, and it may have been difficult at times speaking to an audience like you. As he said, he often deals chiefly with suspected criminal aliens or suspected terrorists. He has no doubt been hardened with the very harsh reality that many individuals wish to come to the U.S. to harm us. He is on the front lines, so to speak, attempting to fight for our right to express ourselves freely. I don't think he (or most of us) would disagree with that.

The American Bar Association, on the other hand, is very, very concerned with the use of immigrant racial profiling. And the use of Biometrics has been a part of certain unfortunate chapters in our recent American jurisprudence. We will soon read about them.

As noted by the ABA on its website, there has no doubt been unfortunate use of racial profiling in the immigration context, as the ABA summarizes important events, legal and otherwise here:

"In stark contrast to the prohibited use of race profiling in criminal law enforcement, the U.S. Supreme Court stated in 1975 that "Mexican appearance" constitutes a legitimate consideration under the Fourth Amendment for stopping a person to verify his or her immigration status. (See United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975).) Such race profiling in immigration enforcement disproportionately burdens persons of Latin American ancestry, the vast majority of whom are U.S. citizens or lawful immigrants. The harms range from embarrassing and humiliating the persons stopped to undermining the status of all Latinos in U.S. society. Race-based immigration enforcement contributes to the fact that 90 percent of the people deported from the country are of Latin American origin (U.S. Dep't of Justice, Immigration and Naturalization Service, "INS Sets New Removals Record," Nov. 12, 1999), when only about one-half of the undocumented population is Latino. (U.S. Dep't of Justice, 1998 Statistical Yearbook of the Immigration and Naturalization Service 240 (2000) (Table I).) This helps reinforce and perpetuate the erroneous stereotype that all Latinos are "foreigners."

In United States v. Montero-Camargo (208 F.3d 1122 (9th Cir. 2000) (en banc), the U.S. Court of Appeals for the Ninth Circuit disregarded the contrary language in Brignoni-Ponce and held that the Border Patrol cannot lawfully consider "Hispanic appearance" in deciding to make an immigration stop. The court based its holding on that fact that "Hispanic appearance" is a weak proxy for immigration status. It also relied on the fact that under the current interpretation of the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court has made it clear in recent years that all racial classifications are constitutionally suspect. (See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) (invalidating a program using racial classifications in an effort to increase government contracting with minority businesses).)

The Lawfulness of Race Profiling in Immigration Law Enforcement
In Brignoni-Ponce (422 U.S. 873, 885-87 (1975)), the Supreme Court held that an immigration stop by the Border Patrol violated the Fourth Amendment because Border Patrol officers relied exclusively on "the apparent Mexican ancestry" of the occupants of an automobile. The Court further stated, however, that "[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" in an immigration stop (emphasis added)."

It is this constant give and take that we must be aware. There is no doubt that under our "social contract" we may give up certain liberties to have other, much more important ones--but what about the risk of overreaching by the government. Our government, like corporations, is run by human beings. No one is perfect. The concern of an Orwellian type of abuse--at least potentially--may always be there in anytype of pervasive constant "monitoring" system--whether that be video cameras on intersections or fingerprinting (or photographing, retinal scanning) of immigrants.

Also, in March of 2008, for example, the alleged (by Congress) widespread abuse of the FBI's authority to secretly obtain Americans' telephone, internet and financial records drew pointed questioning from a key U.S. House of Representatives panel.

As promised by House Judiciary Committee Chairman John Conyers (D-Mich.), the panel "chided" U.S. Department of Justice Glenn Fine and FBI General Counsel Valerie Caproni about an internal audit released publically that detailed the FBI's missteps and illegal use of an investigative tool known as "national security letters".

"The department has converted this tool into a handy shortcut to illegally gather vast amounts of private information," Conyers said, "while at the same time significantly under-reporting its activities to Congress."

That being said, I think some of your comments about the future use of biometrics was well taken.

I leave you with this image: Does it have any relevance to last week's discussion? Does the imgage reflect some of your concerns with the use of Biometrics?

See you next week...


Micah said,

(all of the above said...)
One of the dangers inherent in this technology, as with many other state-of-the-art devices used in similar ways, is that because it is considered so cutting edge, it is seen as foolproof. And because it can deliver its results instantaneously, legal action (such as deportation) can be undertaken extremely quickly, before a case can be really examined as it should be.

I am not sure this speaks to the question of constitutionality, but this technology also seems to be the latest in a string of measures that criminalizes everyone whether or not we have ever committed crimes or ever will commit crimes. And since the technology is being used in particular on immigrant groups, it will be unfairly and disproportionately used to gather data on immigrant groups... thus treating all members of racial groups traditionally associated with immigrant status in this country (e.g. Latinos and Asians) as suspect, as potential undocumented immigrants. To me, it seems destined to be used in a way that smacks strongly of racial profiling.

Micah


Nikki said...

I agree with Micah, that this technology could cause more problems and raise more concerns then it would help; like gathering data and being used as a census and racial profiling. It seems all too easy of a solution or "goal of safer America" (20).. Relying too heavily on something like this can cause tremendous problems, and as mentioned in the article, "technology is not perfect" (10). Although they are working to improve certain faulty areas, especially with facial recognition, it still seems like these kind of errors can still occur and will never be completely certain with 100 percent accuracy, that a person entering the US is in fact a terrorist.

1:36 PM

Aida said...

I do not see anything wrong with biometrics if it can prevent or at least dissuade terrorists or criminals in general from entering a country. I had to get a biometric passport to come to the United States and I had no problem with that.
I am much more concerned by the fact that after 9/11 some people such as politicians or the media have taken advantage of the situation by playing on the voters’ fear and came to equate illegals with potential terrorists. It seems to me that passing repressive bills on immigrants or building a wall are not very efficient ways to fight against terrorism… Geraldo Rivera makes a good point when he says that “The Saudi Arabian attackers had all entered the United States legally and then overstayed their legally obtained tourist visas” (p.115). So in the case of criminals trying to enter the country, I think that biometrics is definitely useful.
And as far as civil liberties are concerned, I am more comfortable with the idea of having my fingerprints and picture entered in a database than with the fact that the FBI can search my telephone, email and financial records under the Patriot Act.

5:44 PM