Customs and Border Protection accepted a second round of comments after the change in administrations.
Technology and immigration advocacy organizations and other researchers are again calling for Customs and Border Protection to put the brakes on the planned expansion of its biometric entry-exit program.
In a notice published in the Federal Register Nov. 19, CBP proposed a rule to “advance the legal framework” so that the Homeland Security Department could initiate a full-scale biometric entry-exit program—which at least initially relies on facial recognition technology—by moving beyond pilots and port limitations. Nextgov reported at the time that various experts and lawmakers were split as to whether the rule represented the inevitable path forward for a technological solution to a policy problem, or a gross expansion of government surveillance threatening privacy, civil liberties, and people of color in particular without demonstrative security benefits.
Yet when the rule was initially published, the public was given only 30 days to respond, a time period the Center for Democracy and Technology, for example, called “inadequate in the best of times.” Under the new administration, the comment period was reopened Feb. 10 for an additional 30 days. The comment period closed for the second time Friday, with many reiterating their calls for a withdrawal of the rule.
“In our initial comments, we noted that CBP had yet to demonstrate that its facial image screening technology can accurately capture traveler facial images and identify travelers,” CDT’s Greg Nojeim and Mana Azarmi wrote in their new comment. “New information only heightens those concerns.”
CDT cited a February CBP report that said 23 million travelers were processed with a 97% match rate, meaning over the course of the year 690,000 people were not matched. CBP also did not disclose the number of travelers who were mismatched, a demographic breakdown of un- or mismatched travelers, or the consequences of non-matches, CDT wrote.
“Even without that information—which might reveal biases or other significant problems with the technology—it's clear that problems with the program will impact hundreds of thousands of people annually, which alone should dissuade CBP from this premature expansion,” CDT’s comment reads.
CDT also suggested that CBP is attempting to change the standards for justifying the biometric entry-exit program by describing the program as important during the pandemic because it is touchless. But the program is supposed to be about security; CDT argues other justifications distract from real concerns over whether facial recognition for entry-exit fulfills its security mission.
Another group, Duke University’s Science Regulation Lab, wrote in its comment DHS should further investigate the accuracy of facial recognition prior to implementation for the public to review and come up with detailed plans to address errors. The lab also suggests cybersecurity at DHS may not be adequate to protect the kind of sensitive data the proposed biometric entry-exit program would collect.
“Ensuring the security of the proposed technologies is especially important given that, once the proposed rule is implemented, the amount of data in DHS’s databases will increase in comparison to the pilot program,” the lab’s comment reads.
Advocacy groups including the National Immigrant Justice Center, the Catholic Legal Immigration Network, and the Immigrant Defense Project all opposed the rule, citing privacy concerns, risks of error, and failure to explain how to prevent discrimination in the implementation of the program.
One group, the Security Industry Association, cited a September Government Accountability Office report to suggest the biometric-entry exit program “has matured” despite concerns GAO noted regarding CBP’s efforts to provide the public notice of its facial recognition technology use. SIA expressed support for the proposed rulemaking and also agreed CBP should be allowed to explore other biometric modalities as necessary. But SIA represents technology companies, some of which already work with CBP and DHS on the biometric entry-exit program, according to their own comments.