Post by Lystra Hagley-Dickinson,  former Professor of Law and Criminology and Head of Department in the Faculty of Education, Social Sciences and Humanities at the University of St. Mark and St. John Plymouth, and Professor Adjunct at the University of the West Indies Open Campus.  She researches and publishes on prisons, prisoners, ethics and comparative criminology. Lystra holds several directorships in professional bodies and voluntary organisations and champions the issues of disparity of treatment, in particular of the disabled and Black Asian Ethnic Minority persons, in the criminal justice system. She is on Twitter @AssoProflystra

Review of Biometric Surveillance and the Law: Societies of Restricted Access, Discipline and Control by Sara M. Smyth (Routledge 2019)

My stepson’s advice to me about 12 years ago, just before I purchased my first iPhone, was to get off my high horse and join the “Matrix”.  He was referring to a family joke that the use of smart technology is the end of freedom and privacy, similar to one of the themes in the Hollywood movie of the same name. My reply was that resistance to both the technological revolution and its encroachment on privacy is not futile.  As I read Smyth’s book, I am convinced that many of us are not even aware that there is anything to resist. This is one of the main contributions of the book, as our privacy is threatened by the technological revolution and its pursuit of safety and security.  We are largely oblivious to the fact that we are cajoled, manipulated and subjected to surveillance to the extent that resistance to it is not even articulable in law, socially or culturally.   

Smyth’s book begins and ends by exploring the notions of privacy and consent in their legal context – one that aims to balance rights and responsibilities in a manner heavily dependent on liberal political thought. The book details the threat to our privacy with a focus on data aggregation, online profiling and surveillance, and in particular, the use of biometrics.  Biometrics is an ever-striving race to denote our uniqueness through the use of responsive AI technologies that examine facial structure, hand geometry, iris scans, vascular patterns, hormone levels, and gait. Collecting, collating, analysing and sharing data is counter-matched by profiling, matching, data aggregation and data mining.  This is all, supposedly, in the name of efficiency, managing risk, and heightening security with little acknowledgment of the abuse and risks associated with these endeavours. Such risks include the stigmatisation and marginalisation of some social groups that become disproportionately targeted because of their gender, race, and new forms of measurable distinction made possible by biometrics. Once such distinctions are biometrically defined, surveillance systems in turn, produce and utilize algorithms based upon these distinctions and further solidify them as permanent security tools.

In eight reasonably sized chapters, Smyth takes us through the history, conceptualisation, law, and use of biometrics for national identification and border control.  It explores the historical nature of privacy and the law, the nature of the self, and our lack of consciousness about how we are indeed manipulated to give away our privacy; something that we might consider one of our most highly valuable individual and collective assets. In particular, chapter 4 on biometrics and law enforcement, and Chapter 7 that discusses the market place of surveillance, were for me the most prized as they provide an abundance of material for my lectures to law, criminology and forensic students.  Chapter 4 provides a detailed exposition of the legal frameworks for the development, use and protection against the risks of using biometrics in the control and administration of criminal justice.   These are juxtaposed in chapter 7 against capitalist market forces and the dominance of monopolies whose very nature is to commodify and make profit from social goods such as freedom and indeed privacy. As an educator I feel obligated to embed these very issues in my students’ understandings of contemporary law, criminology, and forensics, so that they will approach their studies with a firm rooting in social justice, equality and dignity.

Smyth examines the use of biometrics in crime control and surveillance by focusing on case law, the lack of and danger to human rights, and the rule of law and due process. The book exposes the limitations of existing jurisprudence to ensure fairness, accountability and transparency in a foursome monopoly market place of freedom, privacy, autonomy, and consent where our data are the goods, and we are mere plants whose fruits are harvested without our full awareness. It shows that our consent is neither informed nor legal but rather an illusion of grandeur – an illusion in which we believe that our consent actually matters. At worst, our illusion of consent is entirely short sighted and naïve given that with such limited authority in current law, we cannot ensure that digital multi-national monopolies such as Facebook, Microsoft, Apple and Amazon will comply with the privacy agreements to which we consent.

Chapters 5 and 6 are of importance, particular for those interested in understanding the dangers of en masse digital identity systems and border security control mechanisms. The book’s discussion of the Aadhaar in India and the US-Mexico border suggests that the practices of surveillance and control employed in these two contexts are akin to those employed by what sociologist Erving Goffman would call “total institutions” – social institutions that segregate people, monitor every aspect of their existence, and imprison them.  These chapters illuminate a key point of the book: proof of identification technologies and surveillance techniques are developed and tested in prison and prison-like spaces such as border zones, and are in turn used to improve policing in society in general. The potential consequence of this generalized application may be that society becomes transformed and imprisoned in a digital biometric web.

Although Smyth provides an extensive discussion of the operations of Aadhaar in India, she does not include in her chapter a discussion of how law is made and administered in India to the extent that she does in her expositions of the USA, UK and Europe.  Such a discussion would provide a deeper legal context in which to place her most illustrated case study of the developments and working of biometrics for nationality identification.  However, she does treat the lessons learned from its operation in India as a perfect test for the effectiveness and efficacy of this type of system in a real world scenario.  The potential consequence of treating the Aadhaar in this manner however, may be that it bolsters the Eurocentric argument that the Western world is justified in exploiting the rest of the world as a laboratory for research.

Further, Smyth explores how we might legally go about protecting our privacy, even when we have no idea how our data is being mined in the first place. To address this issue, she points to the US where there is a dearth of data protection laws suggesting that the European approach to legislation is at least an attempt to move in the right direction and one that the US will do well to emulate.  Secondly, Smyth urges us to be vigilant about the vulgarity of the deception and coercion that beguiles us to hand over our cash and our intimate selves when surveillance is at an extreme and there is no protection from it enshrined in law. 

The last chapter and conclusion shine light upon the fact that we currently place no limits or controls through law, or other social, economic and cultural constraints, upon biometrics in the commercial market place. Given this, the conclusion provides practical solutions to limit the use of biometrics.  Such solutions include increasing our awareness of data harvesting through recognising that we are not customers of biometrically produced products but rather the product itself.  The book encourages us to gain access to our own data from any agency that holds it so we have knowledge of it; and to protect our personal data by legally obliging companies to safeguard that data.  However, it is hard to imagine that even if we were to follow Smyth’s suggestions for us to be more attentive to the ways in which we participate in the mining and use of our data and to regulate those processes through law so as to protect our privacy, our efforts would not be thwarted somewhat by the very biometric data harvesting systems we aim to regulate. The fact is, we are also dependent on these systems’ usefulness.

I recommend this book not only to academics and scholars, but also to my said stepson and other non-academics like him. Its accessible style has the potential to awaken the senses of anyone to the manner in which, for instance, the four big international information harvesters - Facebook, Google, Amazon and Apple – through user-friendly interfaces, exploit our private selves and solicit our participation in the rendering of our own biometric prison cells.  Indeed, the call to an awakening of the awareness of the uses and abuse of biometric collecting and salvaging of our lives is for me the most significant contribution of the book.

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How to cite this blog post (Harvard style) 

Hagley-Dickinson, L. (2020). Book Review: Biometric Surveillance and the Law: Societies of Restricted Access, Discipline and Control. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/01/book-review (Accessed [date])