Biden’s DHS Reopens Trump-Era Face Surveillance Rule for Comment

  • Rulemaking was among flurry of late Trump agency actions
  • ‘Invasive technology’ raises privacy concern, critic says

U.S. Customs and Border Protection is reopening comments on a controversial, 11th-hour Trump administration facial surveillance rulemaking that is aimed at noncitizens but would capture biometrics of Americans as well.

The Biden administration, taking several immigration advocates by surprise, announced Tuesday the new comment period will run 30 days from Wednesday until March 12. The Trump administration had proposed the rulemaking in November and closed comments in late December.

Several groups asked for more time for feedback on the plan to gather and store facial scans from ports of entry.

“The administration is likely intending to move forward with the rule, but it’s also working to try to insulate itself from litigation at least on the point of the actual sufficiency of the comment period,” Jorge Loweree, the director of policy for the American Immigration Council, said in an interview.

Several of the groups and individuals who commented on the initial rule from November were unsure what it meant for President Joe Biden’s plan for the rulemaking. Advocacy organizations have had conversations with the Biden transition team about the Homeland Security Department’s biometrics collection program and the privacy concerns it creates for U.S. citizens and noncitizens alike.

Bridget Bennett/Bloomberg via Getty Images
A monitor displays the Omron Corp. Okao face and emotion detection technology during the annual CES trade show in Las Vegas on Jan. 8, 2020.

“The Biden administration is right to closely scrutinize this Trump-era proposal, but it needs to go further. CBP should not be using this invasive technology, and the Biden administration should suspend the use of face surveillance on travelers,” Ashley Gorski, senior staff attorney with the American Civil Liberties Union’s National Security Project, said in a press release.

What Did Congress Intend?

The rule would require foreign travelers to take photographs when they enter or exit the U.S., expanding a pilot program at certain ports of entry. The new rule would permit the DHS to collect photos and other biometrics at airports, land ports, seaports, or any other authorized point of departure or entry, CBP said.

“CBP is congressionally mandated to implement a biometric entry/exit system that matches records, including biographic data and biometrics of non-U.S. citizens entering and departing the United States,” the agency said in a press release about the extended comment period.

While Congress called for CBP to collect biometrics, groups such as the American Civil Liberties Union argued in their original comments that lawmakers were thinking of finger or palm prints, not facial surveillance.

U.S. Citizens Also Captured

The rule, ostensibly mandated only for foreign travelers, requires U.S. citizens to opt out of having their facial biometrics processed. U.S. citizens would have to let a CBP officer or airline representative know that they want a manual document check.

“To have to insert sort of an affirmative opt-out scenario there, where you would then subject yourself to a secondary screening, and pull yourself out of line, and wait for personnel to actually be able to conduct that process—it’s just it’s unrealistic,” said Loweree.

The U.S. Travel Association’s comment on the proposed rule in November was generally in favor of the biometrics plan, seeing it as bringing safety and efficiency to travel. Still, the group called on the government to do more to reassure and protect U.S. citizens and their data.

The privacy impact statement for the rulemaking indicated that citizens’ photos would be held in the government database for only 12 hours, but U.S. Travel said it’s just an internal CBP policy, not an established rule.

“To instill greater public confidence in the program, the federal government should establish a rule dictating that U.S. citizens’ photos may only be kept for up to 12 hours,” the group wrote.

The fact that CBP reopened the comment period demonstrates its “steadfast commitment to privacy principles and transparency,” William Ferrara, executive assistant commissioner of field operations for CBP, said in the press release.

To contact the reporter on this story: Shaun Courtney in Washington at scourtney@bgov.com

To contact the editors responsible for this story: Robin Meszoly at rmeszoly@bgov.com; Loren Duggan at lduggan@bgov.com

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