CBP Should Halt Expansion of the Biometric Entry-Exit Program, Many Commenters Write

The 30-day comment period on U.S. Customs and Border Protection’s latest proposed rulemaking for its biometric entry-exit program closed Monday, and several commenters called on the agency to halt the expansion of the program beyond the pilot stages. 

Though the proposal didn’t attract nearly as many comments as a controversial U.S. Citizenship and Immigration Services biometrics proposal garnered in October, those opposed raised far-reaching concerns about the legitimacy of the project. Even some commenters who supported the direction of the rule asked for further clarifications around privacy concerns and opt-out procedures. 

Advocacy groups such as Amnesty International, the Immigrant Defense Project and the American Immigration Council urged CBP to withdraw the proposal. The non-partisan Project on Government Oversight also urged a withdrawal, and the City of Portland in a letter signed by Mayor Ted Wheeler said it “strongly opposes the use of face recognition technology for immigration purposes.” 

“We believe this system poses serious risks to civil rights and civil liberties, and that it does so unnecessarily, given the less-invasive alternatives that have thus far gone largely unexamined by CBP, notably a one-to-one face verification system,” POGO’s comment letter reads. “Unless and until CBP fully considers such options, we believe the use of biometric entry-exit systems should be halted rather than expanded.”

Background on the Rule 

The rule proposed last month would move CBP’s biometric entry-exit system out of the pilot phase and allow the Homeland Security Department to expand the program, which uses a facial recognition system it calls the Traveler Verification Service, or TVS, to all airports, seaports and land ports. 

Other changes that would come as part of this expansion is the elimination of age restrictions limiting the collection of biometric data from children and adults over the age of 79. The proposal also eliminates the option to decline participation in the facial recognition program in favor of manual identity verification for noncitizens.

While CBP told Nextgov at the time of the proposal’s release that it had no plans to expand into other biometric modalities beyond facial recognition, the proposal does explicitly leave this option open, asserting in the proposal “there may be other biometric options that may have potential for implementation in the future.” 

The notice was filed two months after USCIS published its own biometrics proposal that would give DHS components the ability to collect more types of biometric data from far more people—including U.S. citizens and children. Five senators—who also co-sponsor a bill that would ban government use of facial recognition and other biometric technologies—called the proposal an “unacceptable escalation of government surveillance.” 

The two rules are separate, and Theresa Brown, director of immigration and cross-border policy for the Bipartisan Policy Center, told Nextgov at the time of the CBP proposal’s release that the rule represents the inevitable next step in fulfilling DHS’s mandate to set up a biometric entry-exit program. 

“I don’t discount that there are privacy concerns whenever the government collects biometric information, but I don’t see this as some nefarious effort of the Trump administration to suddenly install a random biometric check,” Brown said in November. 

Privacy, Accuracy Concerns Remain 

But commenters expressed concerns that both rules rest on the same flawed foundation: that individuals who violate immigration laws represent significant national security threats. 

“By requiring facial recognition screening and potentially making invasive and unnecessary biometrics collection the norm, we face the likelihood that more people will be categorized as a threat, leading to an increase in the erosion of rights and privacy,” the Immigrant Defense Project’s comment letter reads. 

IDP added it has “serious concerns that DHS and its components will dangerously be able to weaponize information gathered through technologies that they hold out as being neutral, masking the inherent biases and flaws driving DHS policies to advance an ever-hardening regime of exclusion and criminalization.”

Some criticisms are even more basic, asserting DHS has failed to even explain how the deployment of facial recognition technology will actually address problems caused by visa overstays or fraudulent use of legitimate visas. Commenters also said CBP hasn’t shown facial recognition to be the least intrusive collection method, either. 

Amnesty International also points out that DHS’s justification for the proposal rests on federal statute, the statute does not require DHS to roll out facial recognition technology at ports.

“Because the significant intrusion on privacy presented by mass expansion of facial recognition technology is not specifically authorized in the statute CBP cites as its authority for this rulemaking, the proposed rule arguably does not satisfy the principle of legality,” the Amnesty letter reads. 

POGO noted, too, that CBP didn’t present any consideration of less “invasive” alternatives, such as a 1:1 face verification system. TVS works by comparing traveler photos to collections of passport photos submitted to the State Department that correspond to flight manifests. 

But experts say a better alternative from a privacy standpoint would be a system that confirms identity by matching the traveler’s face against only their photo ID. The Transportation Security Administration is already testing a 1:1 system. A 1:1 system might improve accuracy and protect against mission creep, particularly because 1:1 does not require storage of photos.

Another frustration for those opposed to the rule was CBP’s confidence in its algorithms; the National Institute of Standards and Technology found in a landmark 2019 report that facial recognition technology platforms present demographic differentials. CBP in the rule proposal said its TVS algorithm has a 97% accuracy rate. 

But that 97% rate could result in a significant number of travelers being misidentified, even if the rate of inaccuracy is low, simply due to the volume of travelers moving through U.S. airports, seaports and land ports. 

“These findings, when combined with the knowledge that immigrants from Africa, Asia, and the Caribbean collectedly made up a full 47 percent of all immigrants that came to the United States in 2018, undermine CBP’s claim that facial recognition will serve as a more effective resource for identity verification than the current biometrics it collects,” the American Immigration Council’s letter reads. 

Supporters Ask for More Clarification, Too

Even some commenters, such as the International Air Transport Association, that broadly support CBP’s proposal, raised concerns. While IATA said it “has long been a supporter of using biometrics to streamline the travel facilitation process,” it asked for clarification around CBP’s “no-match” procedures. 

IATA noted CBP said it will not have officers permanently stationed at all international departure gates, but it doesn’t indicate what airline partners facilitating the TVS procedures should do if there’s a problem verifying a traveler’s identity. 

“For example, what standards should airlines follow when determining whether to notify CBP of a ‘“no-match’”? Also, what are the procedures to follow if CBP is not available to do the additional inspection in a timely manner? The boarding process, even with the potential efficiencies that may come with biometric boarding, is a time constrained undertaking and gate agents need to be trained on the various issues they may confront when supporting this government program,” IATA’s letter reads. 

The U.S. Travel Association also wrote in support of biometric identification programs but indicated CBP needs to clarify that participation by U.S. citizens is voluntary and said the federal government needs to establish a rule preventing the storage of photos for more than 12 hours rather than relying on internal CBP policy to uphold this key privacy standard. 

“Also, there must be a clear, unobtrusive process for screening U.S. citizens who choose to opt out of the biometric exit system,” the association’s letter reads. “CBP must explain that U.S. citizens may opt out at no detriment to them, what the process is for those citizens, who will be responsible for verifying identities and how these procedures will be executed without disrupting the boarding and exit process.” 

In addition to these adjustments, CBP also needs to clarify with whom the agency shares biometric and biographic information it collects as well as regularly study and publicize data demonstrating the TVS algorithm’s accuracy, according to the Travel Association.