Ignore The Police!
by Bill Rounds
For the past few months, police departments have been using a new iris scanning device to identify people they encounter. Many more police departments will begin using this device soon. The scanner can be held up to the eye of any person and almost instantly identify them more accurately than a fingerprint. Police have imposed restrictions on themselves to prevent misuse of iris scanners. Like a chubby kid guarding a Happy Meal, indulgence is more likely than restraint.
Currently, iris scanners are limited to checking the person scanned against a national database of iris scans. This database presumably only contains criminals, children and individuals who may need assistance, like alzheimers patients. The devices are not supposed to be able to capture and store new entries. These self-imposed limitations may only be temporary.
Warrantless Iris Scans Are Probably Unconstitutional
Although not yet tested, there are some potentially strong constitutional challenges to many iris scans that are likely to occur. If you have a reasonable expectation of privacy in some information or item, the police need a warrant to conduct a search. (Katz v. United States) There is no reasonable expectation of privacy for things that are in the plain view of the public. (Texas v. Brown) Technologies that enhance the senses to be able to see what is in plain view, like common binoculars, can be used by police without a warrant. (Dow Chemical v. United States) Something that is not visible to the naked eye is not in plain view. (California v. Ciraolo; Kyllo v. United States; People v. Arno) Police may also conduct a search that would otherwise require a warrant if they get consent. (Schneckloth v. Bustamonte).
An image of your iris and the detail of your iris is apparently very important information. Many people might reasonably expect to have a right to privacy in that intimate part of their body. Although the iris is held out to the public, the very intimate details, so much detail that the iris becomes a unique identifier, is not held out to the public because nobody can see that with the naked eye. A very powerful technology that can see more than the naked eye, even upon very close inspection, is required. Thus, such a search will likely be unconstitutional without a warrant.
Do Not Consent To An Iris Scan