Think Tanks Question Biometric Exit Program’s Value and Privacy Implications

The development of a Biometric Exit system, a program required by law to be implemented by the Department of Homeland Security (DHS), is back in focus as Congressional members attempt to include funding for the program along with comprehensive immigration reform legislation. Recently, CATO, a D.C.-based Think Tank, called the development of a Biometric Exit program “a big waste of money” and as serving “little purpose” without first developing “more aggressive interior enforcement”. A separate recent report by Georgetown University’s Center on Privacy & Technology questions the privacy implications of capturing the biometrics of all outbound passengers, including American citizens.  

The CATO institute argues the financial costs of the program would be far greater than its return. Especially if it is supposed that one of the program’s primary functions is to assist DHS in identifying foreign nationals who have lawfully entered the U.S. via a visa, but have unlawfully overstayed its expiration. CATO argues a biometric exit program would require major financial and labor investments to deploy technology, restructure existing ports of entry, and conduct investigations to identify and arrest individuals historically considered to be “low priority offenders”.

The Center on Privacy & Technology emphasizes instead the “shaky legal ground” the program stands on. They argue that the collection of biometric data, such as facial images, has not been explicitly authorized. American citizens boarding international flights are having their faces scanned, despite no clear approval. They conclude that Biometric Exit is “unjustified. It is legally infirm. It may be technically flawed. And it may implicate serious privacy concerns.”

Government Perspective

Regarding the program’s cost-benefit, DHS and its component agency implementing the biometric exit program, U.S. Customs and Border Protection (CBP), would contend that, beyond tracking overstays, the program will also serve to detect fraud, prevent outbound smuggling, identify who has departed, and detain high-risk individuals such as criminals or suspected terrorists. Additionally, airlines and airports may end up assuming a portion of the cost if a commercial value is identified in using facial recognition to speed up and add convenience to the overall air travel process. With respect to privacy concerns, DHS/CBP is only using facial images already provided to the government individuals, such as their passport photos. Images are generally discarded in a short period of time from the database.

Background

The development of an Exit-Entry system has a long history dating back to 1981 where it was first recommended by the Select Commission on Immigration and Refugee Policy. The automated system was recommended as a tool to assist the Immigration and Naturalization Service identify visa overstays and enforce actions against nondepartures. In 1996, Congress codified the development of an automated Entry and Exit system as part of the Illegal Immigration Reform and Immigrant Responsibility Act. After the September 11th, 2001 terrorist attacks, the National Commission on Terrorist Attacks Upon the United States recommended an automated entry and exit system that uses biometric data to better identify terrorist entry. They noted that some of the 9/11 terrorists had lawfully entered the United States, but had overstayed their lawful period of admission. Additionally, the commission noted that terrorists who were initially denied visas reapplied and were successfully given visas despite minimally changing their biographic information. In 2004, Congress codified this recommendation into law with the passage of the Intelligence Reform and Terrorism Prevention Act. Congress has since argued that a biometric exit and entry system would assist U.S. law enforcement and intelligence officials prevent “terrorist overstays”. 

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