Airport Facial Recognition is Here and Expanding: What Are Your Rights? Can You Opt-Out? – By Jenni Fink (Newsweek) / March 12 2019
U.S. Customs and Border Protection (CBP) plans to implement facial recognition technology as part of its Biometric Entry-Exit program in all international airports by 2025. While the technology is getting ready to roll-out on a large scale, regulations and laws have yet to catch up.
When it comes to facial recognition technology and the question of, “What are my rights?” Jonathan Turley, a professor at the George Washington University School of Law, told Newsweek the short answer is that a person has little, if any, legal power.
“There is no constitutional protection against an individual being facially recognized on the street,” Turley said. “If we had police officers at every corner, it would be perfectly constitutional.”
Simply put, there are restrictions on the government surveying a person in their own home. However, if a person is in a public place, Turley said a person can be legally followed, recognized and their whereabouts can be reported by the police.
“We have this sort of collision between what our existing legal standards are and the expanding capabilities of technology,” Turley explained. “There is a glaring gap in federal law and dealing with this type of technology. It doesn’t easily fit existing doctrine.”
Passersby walk under a surveillance camera which is part of facial recognition technology test at Berlin Suedkreuz station, in Berlin, on August 3, 2017. By 2025, the CBP plans to have facial recognition technology implemented in every international airport in the United States.
Steffi Loos/Getty Images
Eventually, Turley predicted facial recognition technology will be used everywhere and the greatest expansion of it by the government will be at the airport.
A program that dates back to 1996 with the Illegal Immigration Reform and Immigrant Responsibility Act, in 2004, Congress required the Department of Homeland Security to develop a biometric entry and exit system. That responsibility was then transferred to CBP in 2013.
However, Jeramie Scott, Electronic Privacy Information Center senior counsel and director, EPIC Domestic Surveillance Project, told Newsweek the law applied to non-U.S. citizens and referred to biometrics, not specifically facial recognition.
The current Biometric Entry-Exit program gives United States citizens the ability to opt-out of having their image collected at the airport. Along with citing CBP’s own website, if there’s any pushback, Scott advised travelers to note that Congress hasn’t given the right to CBP to conduct facial recognition on U.S. travelers.
“So, there was no authority granted by Congress to conduct facial recognition at airports on U.S. citizen,” Scott said. “When it comes to the use of facial recognition by the government it should be highly restrictive and in most cases should require a warrant.”
A U.S. Customs and Border Protection officer instructs an international traveler entering the United States to look into a camera as he uses facial recognition technology at Miami International Airport, on February 27, 2018. Joe Raedle/Getty Images
In layman’s terms, facial recognition technology compares a photograph that was just taken, in this case before exiting an airport, to an existing image, such as a photograph from a passport or visa. While U.S. citizens can opt-out of having their photograph taken at the airport, Scott said there’s no way to opt out from having their picture added to the gallery used to compare images.
“CBP unilaterally decided well, we want to use those images as part of this facial recognition that we’re implementing at U.S. airports,” Scott said. “There was no decision that involved the public.”
CBP only retains photos of non-U.S. citizens that are taken at the airport for up to 14 days, according to the website. While current use is very limited, Scott said it could be a slippery slope as to what the government can do with the images if proper regulations aren’t put in place.
“Taking that power of identification into their own hands and deciding how to use it.… It’s a very powerful thing for the government to do,” Scott said.
Turley agreed that regulations on the “fixed reality” of the technology were necessary, calling ignoring it a dangerous plan. With restrictions being pertinent, he urged Congress to create a Title III for facial recognition technology, which would establish rules.
If the government is using facial recognition technology at various places, by necessity, it would have to store images in a databank. Turley argued that among other issues, there needs to be restrictions on how those images are stored and who has access to it.
U.S. Customs and Border Protection officers use a facial recognition device at Miami International Airport, on February 27, 2018.
Joe Raedle/Getty Images
While there’s no debate as to whether a person can opt-out at the airport it’s not entirely clear what would happen after a person vocalizes that desire. On Tuesday, EPIC filed a Freedom of Information Act complaint requesting records about the alternative procedures put in place for those travelers who opt-out of the facial recognition technology. The complaint argued that the CBP’s modification of the descriptions of alternative processes made it more difficult for passengers to opt out.
The 2017 Privacy Impact Assessment informed passengers they could have a CBP officer manually process them by verifying the authenticity of their documentation and that they match those documents. However, the complaint noted, the “straightforward description” was changed, noting that the alternative screening process “typically” involves a CBP officer manually processing the person. CBP referred Newsweek to an answer to one of the FAQs on the website, which stated an alternate process was available, “such as by presenting travel credentials to an available CBP officer or authorized airline personnel.”
As advancements are made and facial recognition technology becomes more normalized, it’s likely to infiltrate other areas beyond the confines of the airport. A future time that could turn American life into a fishbowl society, technology, even in its current state, Turley explained, has made it possible for the government to effectively monitor large portions of the population in real time.
“The greatest protection for privacy has always been a certain lack of technology,” Turley said. “Government simply could not keep many of us under surveillance at any given time. Now, it can. The technology is here and that presents a real problem.”
https://www.newsweek.com/facial-recognition-technology-what-are-your-rights-can-you-opt-out-1360477
