Profili Civilistici nella Protezione dei Dati Personali: uno Studio sui Dati Biometrici

A fingertip is placed on a sensor that captures the fingerprint image, allowing for its encoding and conversion into alphanumeric language: it is this code, rather than the fingertip itself, that constitutes the biometric data. Even behaviors such as typing rhythm or keystroke pacing lend themselves to the mechanisms of biometric technologies, becoming biometric data in the process. The extraordinarily broad scope of the notion of “personal data” extends to its “special category”, represented by “biometric data”. Not only can biometric data be remarkably diverse, but within their processing, different stages of the same data can be identified: raw data, biometric samples, and biometric models. Furthermore, the traditional identificatory purpose of these data seems to blur in the face of the expanding use of biometric technologies for purposes other than the “unique identification of a natural person”. The intrinsic heterogeneity of these categories complicates the jurist’s task in analyzing them. For instance, what applies to fingerprints collected in forensic settings for identification purposes is scarcely applicable to describe the legal status of behavioral data from online users, highly sought after by Silicon Valley giants for their potential in generating predictive inferences. The disorientation arising from the elusive nature of personal data and its subcategories should act as a stimulus to adapt traditional civil law concepts to operate in non-traditional contexts. Legal concepts such as inviolability, dignity, personhood, patrimony, disposition, and ownership are the primary tools employed in this investigation, conducted within the framework of the right to personal data protection. The lens through which this phenomenon will be examined is that of civil law, as reflected in the title: Profili Civilistici nella Protezione dei Dati Personali (Civil Law Aspects of Personal Data Protection). The aim is, ultimately, to analyze the subject through civil law constructs to create a reasoning framework responsive to the challenges posed by technology, applicable even to the initial subject of inquiry: uno Studio sui Dati Biometrici (a Study on Biometric Data). The fundamental problem underpinning many of the questions addressed lies in the commodification of the intangible attributes of personality and, consequently, in the difficulty of legally conceptualizing entities that resist binary interpretative methodologies, as they are neither solely “person” nor exclusively “patrimony”, and perhaps they are both.