Border Face Scan Rule Stirs Civil Rights Groups to Press Biden

The Biden administration may advance a proposal to scan travelers’ faces at the U.S. border and airports even as a coalition of civil rights groups warns of “grave risks to privacy and civil liberties” in a letter to Homeland Security Secretary Alejandro Mayorkas.

“We want to make very clear to the administration that we don’t think that it should be proceeding with this proposed regulation in any way, shape, or form. It should just be withdrawn,” Ashley Gorski, senior staff attorney with the American Civil Liberties Union’s National Security Project, said in an interview.

U.S. Customs and Border Protection in February reopened the comment period on the 11th-hour Trump administration proposed facial scan rulemaking aimed at noncitizens, which would capture biometrics of Americans as well. The proposed rule could allow DHS to store some images for as long as 75 years.

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

Joe Raedle/Getty Images

A U.S. Customs and Border Protection officer uses facial recognition technology to screen an international traveler entering the U.S. at Miami International Airport on Feb. 27, 2018.

The new comment period, which closes March 12, caught immigration advocates by surprise. The groups interpret this reopening as a sign that the Biden administration will proceed with the deployment of mandatory face recognition of non-U.S. citizens at U.S. airports, seaports and the border, Gorski said.

CBP noted when reopening the rule that it’s required by Congress 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 didn’t give any indication that it was planning to pull the rule from consideration in response to emailed questions. The agency plans to respond to all comments on the rule made during both the Trump and Biden administrations and will adjust the final rule as necessary, a CBP spokeswoman said in an email.

Privacy Concerns

The rule as proposed would violate privacy and civil liberties and would disproportionately affect immigrants and communities of color, the group of more than 20 civil and immigration rights groups wrote. It also goes beyond the scope of what Congress intended for biometric collection and advances a program that hasn’t been tested well, they added.

“We have very serious concerns about any government agency having this authority, but in particular CBP, given it its records of systemic abuse of individuals in CBP custody,” Gorski said, citing family separation policies, among others.

House Homeland Security Chair Bennie Thompson (D-Miss.), in a December comment on the rule, warned against making it final as written under the Trump administration.

CBP has moved beyond pilot programs for facial scans only at airports, yet the rule would expand to land border checkpoints and seaports where pilot programs are continuing, Thompson said.

“CBP should suspend the proposed rule change until such time as a biometric exit solution for land and sea ports is identified,” he wrote.

The agency should remove language in the proposal that would expand CBP’s authority to use travelers’ photographs beyond identify verification purposes, an expansion that would be “inappropriate” and would require congressional approval, Thompson wrote in December.

Thompson is hopeful his concerns will be addressed and that CBP will change the rule substantially before it finalizes it, a committee aide said, although the agency hasn’t made any such promises to the committee.

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; Sarah Babbage at sbabbage@bgov.com