Biometric Cyberintelligence and the Posse Comitatus Act

This Article addresses the rapid growth of what the military and the intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence tool is reliant upon biometric databases—for example, digitalized storage of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to more accurately describe the manner in which this new tool is dependent upon cybersurveillance and big data’s massintegrative systems. This Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, will be difficult to enforce to protect against militarized cyberpolicing and cybersurveillance harms that may generate from the domestic use of military grade cybersurveillance tools. Maintaining strict separation of data between military and intelligence operations on the one hand, and civilian, homeland security, and domestic law enforcement agencies on the other hand, is increasingly difficult as cooperative data sharing increases. The Posse Comitatus Act and constitutional protections such as the Fourth Amendment’s privacy jurisprudence, therefore, must be reinforced in the digital age to appropriately protect citizens from militarized cyberpolicing: the blending of military/foreign intelligence tools and operations, and homeland security/domestic law enforcement tools and operations. The Article concludes that, as of yet, neither statutory nor constitutional protections have evolved sufficiently to cover the unprecedented surveillance harms posed by the migration of biometric cyberintelligence from foreign to domestic use