ALI and ELI Launch Project on Ethical and Legal Implications of Biometric Data
The American Law Institute (ALI) and European Law Institute (ELI) have launched a groundbreaking new project to examine the ethical and legal implications of collecting and using biometric data. The project, titled Principles for the Governance of Biometrics, aims to develop a framework that will guide lawmakers in regulating the use of biometric technologies in a constitutional democratic polity. The project has two Reporters, one from each organization. The ALI Reporter will be Nita Farahany of Duke Law School, and the ELI Reporter will be Karen Yeung of the University of Birmingham, Law School and School of Computer Science. One Associate Reporter has been named, Dr. Caroline Lequesne of the Université of Côte d’Azur. To help coordinate the work of the two institutions, there also are two co-chairs: ELI Co-Chair Lord John Thomas of Cwmgiedd, who until recently served as Lord Chief Justice of England and Wales; and ALI Co-Chair Steven O. Weise, a Proskauer partner and member of the ALI Council.
Biometric data, which includes information extracted from the human body through technological means, is increasingly being used for purposes beyond medical treatment. This project will investigate the underlying technologies and socio-technical systems through which biometric data is collected and processed, as well as the legal, political, technological, and economic context in which these technologies are being developed and used. The project will also explore unique challenges posed by biometric data, including its potential for misuse and ability to generate inferences about individuals’ mental, emotional, and physiological states.
“We are excited to again work with the European Law Institute on a project of great global importance,” said ALI Director Diane P. Wood. “After the tremendous success of our Data Economy project, published last year, we sought to find a topic on which to collaborate. Biometric technologies provide a wonderful topic for a joint project because of the opportunities to identify a common vocabulary and definitions for this emerging set of technologies and to offer a set of conceptual governance principles that can be adapted to different regulatory structures in Europe, the U.K., and the U.S. Given the increasing use of biometric technologies and the varying legal approaches to regulating them, this project is timely and essential."
Professor Pascal Pichonnaz, President of ELI, added that this new joint project is “an excellent opportunity to set the much-needed general principles in an area which is still in full flex and evolution. I look forward to a collaboration with the ALI, which has already proved mutually beneficial.”
“Although we are still considering all of the topics to be included in the project, we have identified four initial goals,” said Reporter Farahany. “First, the project will define key terms and develop a classification system for biometric systems, technologies, and data. Second, we will examine the technologies and systems used to collect and process biometric data, as well as the context in which they are used. Third, we will evaluate the benefits and harms of biometric technologies, considering their impact on society and the evidence supporting their claims. Finally, we will consider the legal frameworks governing data, AI, and related technologies in Europe, the United Kingdom, and the United States, in order to identify any gaps or inconsistencies.”
“The project may also consider whether the categories of biometric data, biometric technologies, or biometric inferences are in any way unique, whether they present unique risks, or whether they overlap with existing categories,” added Farahany. “For example, is biodata, from an ethical point of view, distinct from other forms of ‘sensitive’ data? Are there inherent issues with the collection and use of cognitive biometric data that require special consideration in particular contexts such as employment, advertising, or health—for example, due to their unique connection to the human body, or their potential to involuntarily reveal information?”
The project will be conducted by a team of experts from various fields, including law, technology, ethics, and social sciences. The findings of the project will be made publicly available and will inform policy discussions and debates on the future of biometric technologies. The Reporters will now work with the leadership of the ALI and ELI to identify Advisers to the project.
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About the Reporters:
Nita A. Farahany is a leading scholar on the ethical, legal, and social implications of emerging technologies. She is the Robinson O. Everett Distinguished Professor of Law & Philosophy at Duke Law School, the Founding Director of Duke Science & Society, the Faculty Chair of the Duke MA in Bioethics & Science Policy, and principal investigator of SLAP Lab. Farahany's current scholarship focuses on the implications of emerging neuroscience, genomics, and artificial intelligence for law and society; legal and bioethical issues arising from the COVID-19 pandemic; FDA law and policy; and the use of science and technology in criminal law. In addition to publishing in legal and scientific journals, as well as edited book volumes, Farahany is the author of The Battle for Your Brain: Defending Your Right to Think Freely in the Age of Neurotechnology (St. Martin’s Press 2023). In 2010, Professor Farahany was appointed by President Obama to the Presidential Commission for the Study of Bioethical Issues and served until 2017.
Karen Yeung joined Birmingham Law School and the University of Birmingham’s School of Computer Science as Interdisciplinary Professorial Fellow in Law, Ethics and Informatics in January 2018. Her research has been at the forefront of understanding the challenges associated with the regulation and governance of emerging technologies. Over the course of more than 25 years, she has developed unique expertise in the regulation and governance of, and through, new and emerging technologies. Her on-going work focusing on the legal, ethical, social and democratic implications of a suite of technologies associated with automation and the ‘computational turn’, including big data analytics, artificial intelligence (including various forms of machine learning), distributed ledger technologies (including blockchain) and robotics.
Caroline Lequesne is an Associate Professor of Public Law at the Université Côte d’Azur and Director of the Master II in Algorithmic Law and Data Governance. She co-founded the program Deep Law for Technologies, which aims to bring together lawyers, data scientists and computer scientists around the challenges of deep technologies. Director of the Fablex DL4T (Artificial Intelligence Law Clinic) from 2018 to 2020. Her work focuses on the normative and conceptual challenges of the digitalization of public services in the age of artificial intelligence and big data. She is the author of various contributions related to the surveillance technologies and the relationship between science and power.
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About The American Law Institute
The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. The ALI drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education.
By participating in the Institute’s work, its distinguished members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to give back to a profession to which they are deeply dedicated, and to contribute to the public good.
For more information about The American Law Institute, visit www.ali.org.
About The European Law Institute
Established in 2011, the European Law Institute (ELI) is an independent, democratic, membership-based organization, inspired by the activities of The American Law Institute (ALI). ELI serves a similar purpose within the European legal context, focusing on European legal development in a global context.
ELI’s very considerable intellectual resources are focused on the law not as it is, but as it should be. The Institute organises its work around projects, which can be long-term in nature or a timely response to proposed legislation. Its activities span all branches of the law: substantive and procedural; private and public. In its quest for better law-making, the Institute strives to understand and bridge the oft-perceived tensions and gaps between the different legal cultures, between public and private law, as well as between scholarship and practice. Among the hallmarks of ELI projects, is the involvement of diverse legal vocations and European traditions within project teams as well as the fact that it is open to ELI’s entire membership of over 1,700 natural persons and 160 institutions and external experts to shape project outcomes.
Among ELI’s 160 Institutional Members are the European Parliament, the Court of Justice of the European Union (CJEU), the United Nations Commission on International Trade Law (UNCITRAL), International Institute for the Unification of Private Law (UNIDROIT), several supreme courts in Europe, law firms, faculties and professional associations, including the Council of Bars and Law Societies of Europe (CCBE), the Council of the Notariats of the European Union (CNUE), the European Network of Councils for the Judiciary (ENCJ) and the Network of the Presidents of the Supreme Judicial Courts of the European Union. Since its foundation, the Institute has also established close working relations with the American Law Institute (ALI), the (US) Uniform Law Commission (ULC) and the Uniform Law Conference of Canada (ULCC).
The Institute's Individual Members stem from the bar, bench, academia and other legal professions, reflecting the richness of the legal traditions, legal disciplines and vocational frameworks found throughout Europe and beyond. ELI is based in Vienna and supported by the University of Vienna, the City of Vienna and the European Commission.
