11 12 2006
DIGITAL HUMAN RIGHTS
Invisibly Seeing the Invisible
A Biometrical Paradigm , by Stefan Nowotny (AT)
In 1721, on the occasion of a commemorative address for Marc René d’Argenson, the Parisian Lieutenant Général de Police who had just deceased, d’Argenson’s eulogist Bernard Le Bovier de Fontenelle described the role of the police as follows:
“[…] être présent partout sans être vu; enfin mouvoir et arrêter à son gré une multitude immense et tumultueuse, et être l’âme toujours agissante, et presque inconnue de ce corps, voilà quelles sont en général les fonctions du magistrat de police” (quoted from Sälter 2004, p. 1).
Only half a century after the police had been legally introduced “being present everywhere without being seen” could be regarded as the specific function of the police within social life. And this invisible presence, allowing to “discretionarily move and halt an immense and tumultuous multitude”, could be considered “the constantly active and almost unknown soul of this body,” i.e. the multitudinary corpus formed by the inhabitants of the city. Of course, one of the main functions of the police has to be seen in its mandate to maintain social order within the urban space. Of course, the establishment of the modern police institution in Paris in 1667 has to be regarded an important step towards the absolutistic centralisation of state power under Louis XIV. But it is equally important to see how the police institution is conceived of “from inside”, that is, in terms of its modus operandi within social and political life. Invisibility is an important element of this modus operandi. And we should note that “invisibility”, in the case of the police, does not any longer refer to a feudalist secrecy of a power that is withdrawn from public life (in order to appear from time to time in an all the more splendid way), but on the contrary to an almost “organic” action in the very centre of public life – which is precisely what allows Fontenelle to compare the function of the police with the function of the soul with regard to the body that it animates.
In 1898, again in Paris, the French criminologist Alphonse Bertillon stated that the “ideal police” would be capable of “seeing the invisible” (cf. L’Heuillet 2001, p. 311; L’Heuillet 2002, p. 123). Bertillon, prefect of police, is mostly known for his development of the so-called “bertillonage”, a complicated anthropometric identification system which combined various measurements of the human body (initially adopted from anthropological science) with portraits parlés (written down descriptions of persons), and which in France was in use for the purpose of the identification of criminals until the early 20th century. Bertillon’s statement, taken from an article he wrote on graphological identification, marks an important step within the development of police work in the 19th century (cf. Cole 2001, p. 70 f.). Acting invisibly is no longer a sufficient description of the nature of police work; henceforth, the police moreover have to learn how to see the invisible. And yet again, we have to consider a new meaning of the word “invisible”. It is not by simple coincidence, as we will see, that this meaning reminds us of Foucault’s description of the “structure of clinical perception and knowledge” as a form of “invisible visibility” (cf. Foucault 1988, p. 179; Becker 1998, p. 470 f.), for the expertise of clinical knowledge has already long been introduced into the judicial apparatus at the time of Bertillon’s article. “Seeing the invisible” now means to establish a gaze which penetrates the surface of appearances, or again, which knows how to “read” something precisely on these surfaces, in order to construct a specific knowledge that avoids being deceived by those who understand to efficiently camouflage themselves.
It is this shift from an invisible action towards the capability of seeing the invisible by penetrating or deciphering the visible, which represents one of the pivotal aspects of the development of biometric techniques of police identification, for it clearly demonstrates to what extent the practical definition of the function of police work interweaves with epistemic questions concerning the construction of something like a specific police knowledge. In the following, I will try to outline a short genealogy of biometric identification, focussing mainly on the 19th century and the development of fingerprint identification:
One of the crucial contexts within which the interest in techniques of police identification developed is certainly to be seen in the quickly growing European metropoles of the 19th century. The industrial revolution, in particular, had provoked migration movements which led numerous people from the surroundings of small villages into newly emerging urban spaces. With the string growth of both the number and the density of the population as well as with the anonymisation of social milieus, a judiciary system lost importance which – as far as the identification of persons were concerned – had relied upon informal networks of acquaintanceship (cf. Cole 2001, p. 6–31). Already in 1798, a Parisian secret agent described what was increasingly perceived as a problem: “It is almost impossible […] to maintain good behaviour in a thickly concentrated population, where an individual is, so to speak, unknown to all others and thus does not have to blush in front of anyone” (quoted from Benjamin 1991, p. 542). According to Walter Benjamin, the masses themselves appear in this statement “as the asylum that shields an asocial person from his persecutors” (ibid.).
Moreover, not only physical but also social mobility was accelerated, that is, social affiliations were getting dynamized (cf. Cole 2001, p. 9). It is not only the immediate effects of the industrial revolution that are responsible for this, but also the passage – linked with the more general development of bourgois society – from social structures, which followed relatively stable division lines between estates, towards a society of classes. The concept of class here signifies, as Giorgio Agamben has noted by referring to Marx, „the disruption between the individual and its social figure” (Agamben 2000, p. 53) – a disruption which restricts and irritates the “lisibility” of the individual on the basis of its social localisation. This disruption is, not least of all, mirrored by a series of crime cases causing stirs in the 19th century, as well as by photo albums such as the publication Professional Criminals of America (1886), which presented portraits of criminals: It is not murders and homicides which appear most prominently in these contexts, but rather frauds, legacy-hunting, the counterfeiting of documents or money, i.e. crimes which Simon A. Cole has summed up as “crimes of identity” or “crimes of mobility” (cf. Cole 2001, p. 21 f.). The “typical” criminal surfaces from an anonymous social milieu with intent to defraud, then disappears, and surfaces yet again, in another town and with another identity. Along with this, “[t]here was an increasing formal criminalization of mobility itself”, expressed most clearly in the French term “vagabondage criminel” which qualified mobility as such as a crime (ibid., p. 9)
An especially bizarre example for the increasing criminalization of the mobility of certain population groups can be found in the second context which is crucial for the development of fingerprint identification: European colonialism or the formation of colonial administration systems, or more precisely, the colonial administration of British India. In 1871 the so-called “Criminal Tribes Act” was passed by the British legislature, which aimed at the “registration, surveillance, and control of certain criminal tribes” (cf. ibid., p. 67 ff.). The concept of “criminal tribes” can be considered a condensation of three main elements: 1) the tendency, prevalent both in Europe and in the colonies, to conceive of criminality not as emerging from social conditions, but in terms of a biologically determined, “natural” predisposition ; 2) a specific – partly racist in a strict biologistic sense, partly culturalistic – interpretation of the Indian caste system and its rules of marriage through British ethnographers; and 3) the attempt to establish an administration which would allow for the registration and control of the colonized population as a whole. The concept referred to nomadizing groups, whose members belonged to low castes and were considered by the British as “hereditary criminals” in view of their membership of suspect castes. The Criminal Tribes Act radically restricted the movements of these groups by obliging their members by threat of prison to report to the local authorities on a regular basis and to get passports issued for each change of place.
In British India we also find the first example of the use of fingerprints for administrative purposes. Since the 1850ies, the colonial executive Sir William Herschel had experimented with handprints and, later, fingerprints; he initially used the procedure for civil purposes, such as on the occasion of contract conclusions with Indian partners, who were supposed to be “dingenuous” and “deceitful” and therefore allegedly required more efficient techniques of control (cf. ibid., p. 65; Sengoopta 2003, p. 71 f.). In the 1870ies, Herschel began to register the fingerprints of prisoners and finally proposed, in 1877, that the procedure be extended to the whole of British India – only 30 years before the new identification technique was introduced on an almost worldwide scale. Meanwhile, different methods of registration and identification were experimented in British India, among which there was a modified version of Alphonse Bertillon’s “bertillonage” that had been adopted to colonialist perceptions of “racial varieties” (cf. Cole 2001, p. 70 f.).
The idea that the lines to be found on human fingertips are unique had first been formulated, in 1823, by the Czech physician Jan Evangelista Purkyne, the founder of histology. Purkyne had studied philosophy in Prague and later on developed, by adopting the philosophy of Leibniz, the idea that any individual – as an “ens omnimodo determinatum” – shows traits of its unmistakable identity even in its most inconspicuous features. He analyzed the lines of the human fingertips as a mark of this identity and developed a system which was supposed to allow for their classification (and which, however, later on proved to be inapplicable for the purposes of police work). It was Purkyne’s conviction that “the concealed notice of individual nature” could be made accessible by starting from an interior “norm” or “typus”, which persists independently of all coincidences and external influences (cf. Ginzburg 1995, p. 34 f.). It is worthwhile to consider the implications of this conviction: Whereas it is precisely the impossibility of “reading” the individual any longer on the basis of its social characteristics that poses – as we have seen – the problem of the European 19th century and provokes an eminent interest in new identification techniques, for Purkyne the individual is “lisible” as such due to its “inner typus”. Hence, to the complete contrary of the traditional philosophical doctrine of the “ineffability”, the non-appearance of the individual, the individual can be inscribed into a general order of differences which guarantees its lisibility as an individual. This order, however, is precisely not an order of social differences, but an order which is, so to speak, directly related to the individuality of the individual, and which literally registers the latter as a-social.
Nevertheless, Purkyne’s work – even though it provides important insights into the epistemic model upon which techniques of biometric identification rely – did not have a strong impact on the historical development of fingerprinting as a technique of police identification. It was only Francis Galton, nephew of Charles Darwin, who in 1892 – in his seminal book Finger Prints (Galton 1965) – refers to Purkyne’s work, without however discussing its epistemological implications; instead, Galton is far more interested in promoting the practical applicability of dactyloscopy – as well as with the attempt to decipher “race-typical” differences in fingerprints, which he pursues just as obstinately as unsuccessfully.
The actual dynamics eventually leading to the establishment of dactyloscopy as an instrument of police and judicial investigation, has to be localized in the intensification of colonial administration and control systems, on the one hand, and in the quest for reliable procedures of police identification within the urban European context, on the other hand. All through the 19th century, most diverse – and partly bizarre – methods of police identification were tested: from unsystematic descriptions of persons or the proposition, promoted in 1829 in France, to use “smell prints” to the above-mentioned “bertillonage” or – not to forget – photography, of which Benjamin has remarked that it is “the most incisive of all conquests of the human incognito” (Benjamin 1991b, p. 550).
Finally, we should also shed a glance on some important transformations within the European judicial system of the 18th and 19th centuries in order to understand the power relations within which the specific “truth production” of dactyloscopy is embedded: Michel Foucault has provided a relevant analysis of the intertwinements between the development of new techniques of expertise and important changes in the field of criminal justice (cf. Foucault 1999, p. 7–24). In France, the construction of an evidence of guilt was linked until the late 18th century with a complicated arithmetic, which not only allowed to compose “full evidence” on the basis of partial evidences (in accordance with fine gradations concerning the evidential value of the presented elements of proof), but also aligned the degree of penalty with the degree of guilt resulting from this calculation. Due to the pressure of proponents of Enlightenment, above all, this arithmetic was abandoned, and instead the principle of the “intimate conviction” of the judge was introduced. This conviction of the judge, however, could draw upon the conviction of experts who presented their reports on a given case. Foucault’s interest in this principle particularly aims at forensic psychiatry and the ways it is embedded in a larger context of “normalising” practices. In our context, the decisive aspect has to be seen in the more general re-arrangment of the relation between adjudication and “truth”, i.e. the truth of scientific expertises, or of the relations between the value of truth of the latter and the truth effects (drawing upon this value) entailed by the court judgment.
According to Foucault, one of the decisive shifts effectuated by psychiatric expertise within these relations consists in the shift “from the deed towards the behaviour, from the delict towards the way of being” (ibid., p. 16) of the charged individual. This shift ultimately results in showing, as Foucault writes, “how the individual had already resembled its crime even before it has committed it” (ibid., p. 19). The central figure, which illustrated this conceptual transition in the 19th century and at the same time was at the centre of the police’s attention and interest in identification procedures, is the figure of the recidivist, the habitual criminal (cf. Cole 2001, 15 f.), which of course repeatedly became the subject of naturalizing interpretations. Nevertheless, two other aspects, specifically accompanying the establishment of biometric identification techniques, are even more important here: first, in the case of dactyloscopy the above-mentioned shift does not halt at the individual’s way of being, but heads for bare individuality as such – and this in a way or due to a procedure, which per se does not any longer allow for any kind of statement on the “way of being”, but aims at a pure fixation of identity. Along with this, however, it is, on the other hand, also the “localization” of the expertise that is shifted: The figure of the expert in dactyloscopy ultimately does not belong any longer to any authority of truth production that is external to the judiciary apparatus; the fingerprinting expert is rather an immediate part of the police, his (or her) specific knowledge is thus situated, vis-à-vis the court, at the very intersection at which police action and the implementation of a given legal order through an abjudicational activity touch upon each other and affect each other.
If it were only for this last aspect – the immediate co-implication of police knowledge and abjudication – it seems not only necessary to further examine the impact of biometric knowledge on the formation of modern societies, but also to fundamentally question the ongoing generalizations of the use of biometric techniques, whether in private contexts or in governmental actions. For the “invisible visibility”, as a constitutive component of police knowledge that paradigmatically gets manifest in biometric identification techniques, goes along with a specific type of the inscription of individuals into the judicial apparatus – an inscription which is almost completely confided to the police. And this kind of inscription does not necessarily mean (as can be seen, for instance, in the Eurodac programme of the EU, designed to control “clandestine” migrants by the use of biometric data) to summon people to appear in court, where they are also supposed to be able to defend their rights; it can also mean the exact opposite, that is, to keep them away from courts and thus to deprive them of any possibility to defend or claim their rights.
 The most prominent exponent of the thesis of a “biologially determined” criminality was the Italian criminal anthropologist Cesare Lombroso, whose influential work L’Uomo delinquente was published in 1876.
 The kind of measures, which some colonial officials might have had in mind apart from this, can be judged from the following statement drawn from a report, written in 1871, of the British jurist J. S. Stephen, who seeks to highlight “what the term [criminal tribe; S. N.] really does mean”: “It means a tribe whose ancestors were criminals from time immemorial, who are themselves destined by the usages of caste to commit crime, and whose desacendants will be offenders against the law, until the whole tribe is exterminated or accounted for” (quoted from Cole 2001, p. 67).
 It should be mentioned here that the problems which appeared in the development of biometric identification methods did not predominantly concern identification itself (given that its basic possibility was simply presupposed by a specific “will to truth”), but rather questions concerning the ways in which identification data could be classified and organized with a view to the requirements of administrative practices.
 For the context of Galton’s works, which, for the rest, stand especially for the foundation of British eugenics but also for the development of so-called “composite photography” (through which Galton tried to make visible the physiognomies of various types of criminals), cf. for example Schmidt 1999.
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Sengoopta, Chandak (2003): Imprint of the Raj. How Fingerprinting Was Born in Colonial India, London.
Schmidt, Gunnar (1999): „Francis Galton: Menschenproduktion zwischen Technik und Fiktion“, in: H. Kaupen-Haas u. Ch. Saller (eds.): Wissenschaftlicher Rassismus. Analysen einer Kontinuität in den Human- und Naturwissenschaften, Frankfurt/M. u. New York, p. 327–345.