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A European Commission funded action (contract SAS6-006093) |
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ETHICAL, LEGAL AND SOCIAL ASPECTS
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DIRECTIVE 95/46/EC constitutes the legal background of biometric technologies in Europe. The Directive aims to remove obstacles to the flow of personal data by requiring a high level of protection of fundamental rights (in particular, privacy) in the Member States. In particular art.8 (par 1, 3 and 4) establishes the legal framework in which one should collocate medical implications of biometric identification technologies:
1. Member States shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. […]
3. Paragraph 1 shall not apply where processing of the data is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional subject under national law or rules established by national competent bodies to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy.
4. Subject to the provision of suitable safeguards, Member States may, for reasons of substantial public interest, lay down exemptions in addition to those laid down in paragraph 2 either by national law or by decision of the supervisory authority. |
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This article must be compared with Chapter III Art.10 (Private life and right to information) of the European CONVENTION ON HUMAN RIGHTS AND BIOMEDICINE:
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Everyone has the right to respect for private life in relation to information about his or her health.
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Everyone is entitled to know any information collected about his or her health. However, the wishes of individuals not to be so informed shall be observed.
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In exceptional cases, restrictions may be placed by law on the exercise of the rights contained in paragraph 2 in the interests of the patient.
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| Also the EUROPEAN UNION CHARTER OF FUNDAMENTAL RIGHTS addresses some critical issues that can affect biometric technologies (art. 8 Protection of personal data): |
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Everyone has the right to the protection of personal data concerning him or her.
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Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified
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As biometric becomes important, also its medical implications are becoming critical. In its final report the SIBIS project – funded in the "Information Society Programme" of the European Commission (SIBIS, 2003) - has identified some crucial issues in medical biometric applications such as confidentiality, reliability and effectiveness. According to a comprehensive European Commission funded study (BIOVISION, 2003) biomedical implications of biometrics are both direct and indirect: « A clear assessment of the medical issues should pre-empt these concerns, so that, for example, reluctance to use certain sensors is not easily justified on hygiene fears […]These considerations are termed the direct medical implications of the application of biometrics and their impact should be examined for those systems that are likely to be most widely used. There is another class of medical concern, termed indirect medical implication, where physical or mental characteristics or conditions might be deducible from biometric measurements ». Biometrics may affect biomedicine at least in three senses: |
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Applications for security purposes and to restrain access to sensitive data - Security issues are becoming more and more relevant to the health system. It is enough to think of the need to restrain dual use technologies (i.e., technologies that can be used to produce both drugs and bioweapons), to improve secure communication and information exchange between healthcare service providers and networks (e.g., in clinical trials, in transborder networks such as organ exchange organisations, etc.), to limit physical access to buildings and hospital wards, and to authenticate medical and social support personnel. Also applications to restrain access to sensitive data are vital. As electronic medical records are extensively used, they are likely to be protected by biometric identifiers. Safe identifiers are also requested to control access to medical databanks (genetic, tissue, etc.) and many hospitals and healthcare organizations are already deploying biometric security architecture to ensure the trust of patients. If it becomes common to use biometric identifiers, there will be a tendency to centralise in the same bank (or in interconnected banks) biometric, medical, economic, legal data. Data matching (the process of linking systems, by a biometric or another one identifier) and "interoperability" of information systems provoke many ethical concerns (Clarke R, 1994). In particular they arise when biometrics are used beyond their original purpose, without the informed and voluntary consent of the participants (the so-called “function creep”). |
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Applications to avoid illicit use of social welfare and medical support - The need to administrate scarce resources in social and medical care makes crucial to avoid illicit use of social welfare and medical support. Departments in charge of social assistance in countries like the USA, Canada, Spain and the Netherlands are launching programmes for detecting and preventing duplicate benefits. This is a kind of fraud that involves the collection of more benefits than one is entitled to, by entering the program under two or more identities. A wide consensus appears to exist concerning the high levels of this type of fraud, and hence concerning the urgency of the need for new identification practices. It is claimed that the introduction of biometrics would result in billions of savings on public spending. Also unauthorized Buse in assistance programmes (e.g., heroin addicts who participate in methadone maintenance plans) could be tackled by using biometric identifiers. Most groups targeted by biometric identifiers are made up by people who are not able to identify themselves (e.g., infants, dementing elderly, incapacitated patients) or other vulnerable groups (e.g., disabled persons, drug abusers, migrants and mobile populations). They are critical populations from an ethical point view because they are unable or less able to give an informed consent. |
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Biometrics as a potential source of biomedical information about an individual - The "living issue" is an important issue in biometrics. Biometric identification could be fooled by a latex finger, a prosthetic eye, a plaster hand, or a DAT voice recording. Biometric devices must therefore be able to determine whether there is a live characteristic being presented. For example, fingerprint sensors might incorporate pulse oximeter technology, and iris scanners might test for pupillary response. By monitoring “living characteristics” biometric devices become a source of sensitive biomedical data; e.g., pupillary responses depend on whether one has been drinking or taking drugs, whether the person is pregnant, and with the variabilities of age in general; changes in blood flow are typically associated with several medical conditions as well as with emotional responses. There are ways in which you might be able to sense the emotional attitudes from some biometrics, e.g. nervousness in a voice pattern and anger from a facial image. There has been some exploratory work in this area. Moreover recent scientific research suggests that biometric features can per se disclose medical information. Certain chromosomal disorders – such as Down’s syndrome, Turner’s syndrome, and Klinefelter’s syndrome - are known to be associated with characteristic fingerprint patterns in a person. Knowing that certain medical disorders are associated with specific biometric patterns, researchers might actively investigate such questions as, can biometric patterns be linked to behavioral characteristics, or predispositions to medical conditions? If these questions are answered affirmatively, biometrics might become not only an identifier, but also a source of information about an individual. Finally also future and likely use of genetic test information and DNA profiles in biometrics bear many risks of discrimination and the multiplication of compulsory testing procedures. |
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BACKGROUND DOCUMENTS
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