A/HRC/13/37
Rapporteur is particularly concerned about cases where biometrics are not stored in an
identity document, but in a central database, thereby increasing the information security
risks and leaving individuals vulnerable. As the collection of biometric information
increases, error rates may rise significantly.34 This may result in the wrongful
criminalization of individuals or social exclusion. Meanwhile, unlike other identifiers,
biometrics cannot be revoked: once copied and/or fraudulently used by a malicious party, it
is not possible to issue an individual with a new biometric signature.35 In this context, it has
to be noted that, contrary to its scientific objectivity, DNA evidence can also be falsified.36
25.
Centralized collection of biometrics creates a risk of causing miscarriages of justice,
which is illustrated by the following example. Following the Madrid bombings of 11 March
2004, the Spanish police managed to lift a fingerprint from an unexploded bomb.
Fingerprint experts from the United States Federal Bureau of Investigation (FBI) declared
that a lawyer’s fingerprint was a match to the crime-scene sample. The person’s fingerprint
was on the national fingerprint system because he was a former soldier of the United States.
The individual was detained for two weeks in solitary confinement, even though the
fingerprint was not his. Examiners failed to sufficiently reconsider the match, a situation
that was made worse for him when it was discovered that he, as a lawyer, had defended a
convicted terrorist, was married to an Egyptian immigrant, and had himself converted to
Islam.37
(c)
The circulation of secret watch lists
26.
Another available technique is watch-list monitoring. The most common type of
watch-list monitoring is the “no-fly/selectee” list. Such lists are circulated to airlines and
security officials with instructions to detain and question any passenger with a certain
name. Little is known of the extent to which these lists are being used, but where these
systems are publicly overseen, a number of errors and privacy concerns have arisen,
particularly in the United States38 and Canada.39 Data integrity issues remain, as the lists
have to be continually checked for errors and the identification processes must be
performed with great care. These lists are frequently kept secret as they could tip off
suspected terrorists, but at the same time this secrecy gives rise to problems of individuals
being continually subject to scrutiny without knowing that they are on some form of list,
and without effective independent oversight. Such secret surveillance could constitute a
violation of the right to privacy under article 17 of the International Covenant on Civil and
Political Rights.
27.
Where terrorist lists have been made public, article 17 of the Covenant is triggered
in another form. The Human Rights Committee has concluded that the unjustified inclusion
of a person on the United Nations 1267 Committee’s Consolidated List constituted a
violation of article 17. It considered that the dissemination of personal information
34
35
36
37
38
39
GE.09-17804
See, for example, M. Cherry and E. Imwinkelried, “A cautionary note about fingerprint analysis and
reliance on digital technology”, Judicature, vol. 89, No. 6 (2006).
See E. Kosta et al., “An analysis of security and privacy issues relating to RFID enabled ePassports”,
International Federation for Information Processing, No. 232 (2007), pp. 467–472.
See, for example, D. Frumkin et al., “Authentification of forensic DNA samples” Forensic Science
International: Genetics (17 July 2009).
See the United States Department of Justice, Office of the Inspector General, A Review of the FBI’s
Handling of the Brandon Mayfield Case, January 2006.
See the United States Department of Justice, Audit of the FBI Terrorist Watchlist Nomination
Practices, May 2009.
See the Office of the Privacy Commissioner Canada, Audit of the Passenger Protect Program of
Transport Canada, November 2009.
11
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