On November 19, 2020, U.S. Customs and Border Protection (CBP) proposed an expansion of facial recognition at the border to include photographs of every non-citizen coming in or out of the United States, regardless of their means of travel, entry and exit points, or even age.
The Department of Homeland Security (DHS) already collects biometric data on aliens crossing the border, and has since 2004, however the new proposal expands the entry and exit points at which this data would be collected. It proposes all traveling non-citizens have their picture taken upon entry and departure so that DHS can implement facial recognition technology “to make the process for verifying the identity of aliens more efficient, accurate, and secure.”
One week ago, the American Civil Liberties Union (ACLU) filed an objection to the proposed expansion. The ACLU cautions that in contrast to other biometric forms of identification, such as fingerprints, photographs can be taken covertly and without consent. It also notes that facial recognition technology is seriously flawed, and specifies that at least two Black men have been falsely identified using the technology in Detroit and wrongfully arrested for crimes they did not commit.
The ACLU is not only concerned with expanded surveillance and mistaken identities at border crossings, but that “CBP will collect and store [faceprints] in a DHS database for up to 75 years, where they may be used not only by DHS, but by foreign governments and federal, state, and local law enforcement to identify individuals for a variety of purposes, far removed from the reasons for CBP’s initial collection.”
Another objection filed by the National Immigrant Justice Center states the proposal would expand surveillance based on “unfounded and xenophobic claims,” “[exacerbate] the harms of biased law enforcement practices,” and violate the Immigration and Nationality Act (INA), specifically in expanding biometrics collection to children, amounting to “perpetual surveillance.”
The DHS proposal states its aim is to combat terrorists who use false travel documents to circumvent border checkpoints, visa fraud, and the fraudulent use of legitimate travel documents. DHS also argues that a picture, as opposed to other kinds of biometric data collection, is an unobtrusive way to gather biometric data. DHS already collects pictures of travelers for international travel, passport applications, visa applications, and other interactions, but the new proposal aims to create a gallery of facial images from which to compare live photographs. This integration would take place over the next three to five years.
The proposal includes a maximum retention policy of 75 years, though it also states, “[p]hotos of U.S. citizens collected as a result of their participation in this program will be discarded within 12 hours of verification of the individual’s identity and citizenship.” CBP “retains facial images of non-immigrant aliens and lawful permanent residents for no more than 14 days.”
The retention policy implies that the facial recognition policy could be widespread and U.S. citizens also subject to the inspection.
The ACLU and other objectors warn that retention limits are unclear and ripe for misinterpretation and abuse.
Earlier this year, the pilot version of DHS’s proposed program was the victim of a cyber attack in which traveler images from CBP’s facial recognition pilot appeared on the dark web.
Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States, 74162-74193 [2020-24707], Department of Homeland Security (November 19, 2020)
Comment of Civil Society Organizations in Opposition to CBP NPRM Expanding Biometric Data Collection at U.S. Airports and Other Ports of Entry, ACLU (December 21, 2020)
CBP’s Plan to Expand Face Surveillance at Airports is a Civil Liberties Disaster in the Making, ACLU (December 21, 2020)
Review of CBP’s Major Cybersecurity Incident during a 2019 Biometric Pilot, Office of the Inspector General (September 21, 2020)
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