Data Protection Bill [HL] — House of Lords, 2017-11-06
Topic: Civil Rights
Timothy Francis Clement-Jones (Liberal Democrats, Centre to centre-left): My Lords, I beg to move Amendment 21A and also speak to Amendment 66A. I also support Amendments 41 and 44, but my noble friend Lord McNally will speak in support of those The issue in question is the need for a lawful basis for biometric data used in the context of identity verification and authentication to increase security. Biometric data changes its status under the GDPR and becomes a new category of sensitive data. That narrows the lawful basis on which companies can collect and use biometric data, and it makes this processing of data difficult or impossible because the only lawful basis available is consent, which is not appropriate or feasible in the circumstances Biometrics are increasingly being used in different sectors for identity verification and authentication, both as a security measure and to provide greater identity assurance. I am sure that anybody who has used the fingerprint security aspect of an iPad will be aware of that. Employers are also increasingly using biometric access controls for premises or parts of premises that require high security levels and access audit trails. Organisations using biometrics for additional security and assurance also need to keep their mechanisms up to date, and continually test and develop ways in which to prevent bad actors from hacking or gaming their systems. That research and development activity also requires biometric data processing and can involve AI or machine learning to train and test systems The Bill has a fraud prevention lawful basis for processing sensitive data, under a heading of "substantial public interest". However, even assuming that the Bill is clarified and the fraud prevention lawful basis is available to use without having to satisfy an additional "substantial public interest" test, it is not suitable for the biometric uses described. The problem is the risk that necessary and desirable processing of biometric data will not be possible. Increased security benefits everyone, and it would not be desirable for the law protecting the use of personal data to be the barrier to organisations implementing better security for individuals The solution is that we acknowledge that the GDPR allows additional lawful bases for processing sensitive data. Specifically, Article 9(4) allows member states to add lawful bases for processing biometric, genetic or health data. The essence is that we use the option available under that article to add a lawful basis, as set out in the amendments. The amendments may not be technically perfect, but I hope that the Minister will agree that they are heading in the right direction. The proposed additional lawful basis covers three biometric data processing activities, described above. There are already safeguards for individuals in the GDPR regarding biometric data processing, as any large-scale processing of sensitive data is subject to a data protection impact assessment, which would be the case for identity verification or authentication as an integral and ongoing security or assurance feature of the service that the individual has chosen to use. The proposed amendment would also introduce this safeguard as a requirement for employee biometric access control processing. I beg to move.