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December 28, 2020

ACLU Objects to Expansion of Facial Recognition by CBP


On November 9, 2020, U.S. Customs and Border Protection (CBP) proposed a rule that would vastly expand its use of facial biometrics. Specifically, the notice proposes an expansion of biometric identity verification for non-US travelers both entering and exiting the US, including at airports, seaports, and land border crossings. The notice has swiftly drawn criticism from the American Civil Liberties Union (ACLU) and other groups, who argue in a December 21 objection that increased facial surveillance is a grave threat to civil liberties, as well as a privacy nightmare.

Facial recognition technology, in which “faceprints” are collected and algorithmically compared to a database of existing traveler images, has already been in use by CBP in a pilot program deployed at select border crossings—for all international travelers, including US citizens (although citizens have the option of abstaining). This data would live in the Department of Homeland Security’s (DHS) system for up to 75 years and be accessible to international governments as well as federal and local authorities, including local law enforcement. The notice aims to remove legal barriers to expanding biometric identification in order to create a “comprehensive” system. With those changes, the technology could spread to all points of US entry and exit, a dramatic increase in the number and use of faceprints collected by the government.

In response, the ACLU, joined by civil society groups including the Electronic Frontier Foundation (EFF) and the Open MIC (Open Media & Information Companies Initiative), asserts that the rule is a threat to privacy and disproportionately harms immigrants and people of color.

“CBP’s proposed use of face surveillance at airports, sea ports, and the land border would put the United States on an extraordinarily dangerous path toward the normalization of this surveillance,” said Ashley Gorski, senior staff attorney with the ACLU’s National Security Project, in a statement to reporters. “The deployment of this society-changing technology is unnecessary and unjustified.”

U.S. Customs and Border Protection wants to expand use of facial recognition at border crossings (Rebekah Zemansky/Shutterstock)

In a November 20 press release, CBP listed the various statutes, going back to 1996, that outline a Congressional mandate for the DHS’s use of biometrics. Citing cost and accuracy benefits, the agency further argued for the validity and expansion of the controversial identification method. According to CBP, “Since September 2018, CBP has leveraged facial biometrics to prevent more than 300 imposters from illegally entering the United States by using genuine travel documents that were issued to other people.”

In an attempt to relay the usefulness of facial comparison in preventing COVID-19 transmission, CBP’s webpage on biometrics emphasizes the technology’s touchless aspect, which they say can help protect travelers, airline, and airport employees, and DHS officers.

The ACLU highlights the associated risks of the technology’s seamless deployment, and questions its use over other forms of biometrics: “Unlike fingerprints and many other biometrics, faceprints can be collected covertly, at a distance, and without our consent.” Among their objections, the group also contends that Congress has not authorized the proliferation of biometrics at this scale, and furthermore, has never actually defined the technology to encompass faceprinting. Since the DHS started collecting biometric data in 2004, over a decade passed before facial surveillance was used in airport environments, according to the statement. It would have been nearly impossible for Congress, in 2004, to intend to authorize this expansion, as well as other forms of biometric data collection, in perpetuity.

The EFF, for its part, claims that facial recognition technology is biased and flawed. In addition to disproportionately failing to identify Black people, according to several studies, it is prone to false positives that have resulted in wrongful arrests. The FBI has admitted its system “may not be sufficiently reliable to accurately locate other photos of the same identity, resulting in an increased percentage of misidentifications.”

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