# The State of Facial Recognition
*Entry-Exit Points: Balancing Convenience with Privacy*

## Introduction

In recent years, the widespread adoption of facial recognition technology at U.S. entry-exit points, under the purview of U.S. Customs and Border Protection (CBP), has raised significant concerns related to privacy, security, and individual rights. This technology, while aiming to enhance border security and streamline traveler verification, poses various challenges that need to be addressed.

## The Current State

Facial recognition technology has assumed a pivotal role in the United States Customs and Border Protection's (CBP) efforts to accurately monitor international travelers as they enter and exit the country. This shift from solely relying on biographic information to incorporating biometric data is driven by the imperative to identify overstays and fortify border control measures. The legislative foundation, as delineated in [8 U.S.C. § 1365b](https://www.law.cornell.edu/uscode/text/8/1365b), unequivocally mandates the development and execution of an entry-exit data system with the goal of seamlessly integrating both biographic and biometric records for foreign nationals.

The ubiquity of facial recognition technology at U.S. entry-exit points has surged, promising unparalleled speed and convenience for travelers. Nevertheless, this convenience comes with a consequential trade-off: passengers may unwittingly consent to continued scanning and tracking by third-party contractors. This article delves into the current landscape of facial recognition technology at U.S. entry-exit points, explores the ongoing pursuit of an opt-out procedure, and scrutinizes the far-reaching implications for passenger privacy.

## The Landscape of Facial Recognition at Entry-Exit Points

According to the Government Accountability Office (GAO), more than one million international travelers exit the country daily, with approximately 300,000 departing by air. This massive volume necessitates efficient methods of tracking departures, particularly for identifying overstays and ensuring national security.

Facial recognition technology has emerged as a solution to these challenges. It enables U.S. Customs and Border Protection (CBP) to biometrically confirm travelers' identities, contributing to more reliable and accurate departure records. Since December 2006, a biometric entry capability has been fully operational at all air, sea, and land ports of entry.

## The Issue of Implied Consent

While the technology offers benefits, it raises concerns about privacy and consent. When passengers purchase tickets for flights, they might unwittingly consent to facial recognition scans during check-in and boarding processes. This implied consent, similar to agreeing to be photographed, may expose travelers to continuous scanning and tracking by third-party contractors.

## The Quest for an Opt-Out Procedure

Recognizing the need to balance convenience with privacy, some individuals and advocacy groups are advocating for a clear and accessible opt-out procedure. The Government Accountability Office (GAO) report highlights the importance of travelers' awareness of their rights regarding facial recognition technology.

To address this issue, U.S. Customs and Border Protection (CBP) has established requirements for its commercial partners to provide notice to travelers about the use of facial recognition technology. Travelers should have the option to decline biometric identity verification if they wish to protect their privacy.

## GAO Report Findings

A Government Accountability Office (GAO) report sheds light on the current state of facial recognition technology implementation in U.S. entry-exit points. The report underscores the importance of reliable and accurate traveler data but also highlights several crucial aspects:

- Operational Testing: The report reveals that CBP conducted operational testing to evaluate the accuracy and performance of facial recognition technology in the context of air exit procedures. While it met accuracy requirements, it fell short of performance standards, particularly in capturing traveler photos.
- Director's Assessment: The GAO report references a Letter of Assessment from the Director of the Office of Test and Evaluation for DHS, raising questions about the overall operational effectiveness of the program. Although operational effectiveness remains a topic of debate, it was deemed to have "the potential to be operationally effective."
- Opt-Out Procedures: The report points out that CBP has introduced requirements for commercial partners to provide notices to travelers about the use of facial recognition technology. These notices must include an opt-out procedure, enabling travelers to make an informed choice about participating in facial recognition.

## San Francisco First To Ban Facial Recognition Software
In a groundbreaking move, San Francisco became the first city in the United States to ban facial-recognition software. This historic decision came amid growing concerns about the implications of such technology on civil liberties and personal privacy. The city's officials recognized that facial recognition could lead to unwarranted surveillance and potential misuse by government agencies. The ban was seen as a significant step towards safeguarding the rights and privacy of residents, setting a precedent for other cities and regions across the country to consider similar measures to protect citizens from the invasive nature of facial-recognition technology.

## Challenges and Concerns

The integration of facial recognition technology into U.S. entry-exit points is not without challenges and concerns. Privacy issues, data security, and technical limitations are among the foremost concerns. Additionally, the lack of an immediate alert system to detect and address performance issues poses risks to system reliability.

### Government Use of Biometrics
The use of facial recognition technology by government agencies, such as the TSA, has raised concerns about privacy and potential surveillance.

Unlike the collection of fingerprints, the collection of faceprints grants the government extraordinary and unprecedented powers to conduct persistent, secret surveillance of public movements. For this reason alone, DHS and CBP should not deploy this technology without express authorization from Congress.

Here's a breakdown of the key points:

* **Government Use of Facial Recognition:** The TSA utilizes facial recognition technology as part of airport security procedures. This technology is used to verify the identity of travelers during the security screening process.
* **Privacy Concerns:** Some individuals are concerned that the use of facial recognition technology by government agencies could lead to widespread surveillance. This concern is particularly relevant in light of China's extensive use of facial recognition for surveillance purposes.
* **Purpose of TSA Facial Recognition:** The TSA claims that it does not use facial recognition for law enforcement purposes. Instead, it is used to verify travelers' identities during the security process.
* **Data Retention:** According to the TSA, facial recognition scans are typically overwritten immediately at the Travel Document Checker podium. However, there are cases where data is retained for up to 24 months for evaluation purposes by the TSA's science and technology office.
* **Expansion of Technology:** The TSA has plans to expand the use of facial recognition technology. There is a pilot program at select airports where passengers with PreCheck or Global Entry can use facial recognition as their ID. This eliminates the need to present physical identification.
* **Privacy Rights:** Travelers are not required to participate in facial recognition. If individuals are uncomfortable with the technology, they can choose to present their physical ID instead. TSA officers should accommodate this request, and signs informing travelers of their rights should be displayed.
* **Concerns about Negative Consequences:** Travelers who choose not to participate in facial recognition should not experience any negative consequences, such as longer wait times or additional security measures. If such issues arise, travelers are encouraged to speak with a manager.

In summary, the TSA uses facial recognition for identity verification but claims not to use it for law enforcement purposes. Travelers have the option to decline facial recognition and present physical ID instead, with protections in place to ensure their rights are respected. However, concerns about data security and potential breaches remain.

### Facial Misrecognition Arrests

There is growing issue of misidentification and wrongful arrests resulting from facial recognition technology in law enforcement. In a recent lawsuit, a black man named Randal Quran Reid was wrongfully arrested and held for six days due to faulty facial recognition technology. While visiting his mother in Atlanta, Reid was pulled over by DeKalb County police, who claimed he had arrest warrants in Louisiana, despite never having been to that state. Despite his protests of innocence, Reid was detained, and the arrest warrants were solely based on the results of facial recognition technology. The technology incorrectly identified Reid as a suspect in a New Orleans robbery in June 2022. Detective Andrew Bartholomew of the Jefferson Parish Sheriff’s Office relied solely on facial recognition matching surveillance video to Reid's driver’s license, failing to conduct a basic search that would have proven Reid's innocence. Fortunately, Reid's family and attorneys were able to verify his identity, revealing significant differences between Reid and the actual suspect. Reid has accused Bartholomew of false arrest, malicious prosecution, and negligence, with the sheriff's office also facing criticism for its handling of facial recognition technology. This case highlights the serious consequences of relying solely on facial recognition technology for arrests and its potential for misidentifying individuals, particularly people of color. It also adds to a growing number of lawsuits against authorities over the misuse of facial recognition technology.

Several other individuals, including a pregnant woman, have also been falsely accused due to the technology. Critics argue that facial recognition poses concerns for civil liberties, privacy, and racial bias, often leading to false positives. Quran's case raises questions about the credibility of the technology and its over-reliance in the arrest process. Reminders were issued to law enforcement to supplement evidence when using facial recognition for arrest warrants. This highlights the challenges and controversies surrounding facial recognition's impact on individual rights and freedoms.

### Facial Locked Phones and Data Protection
With increased scrutiny of travelers' electronic devices at customs checkpoints, concerns arose about protecting personal data from unauthorized access. This article provided valuable insights into how individuals could safeguard their phone's content when crossing international borders. It highlighted the importance of understanding one's rights during customs inspections and suggested practical steps, such as using encryption and backup methods, to secure personal information. This guidance aimed to empower travelers to protect their digital privacy while complying with border security procedures, offering a balance between security and individual rights in an era of heightened scrutiny.

## Next Steps and Research

Addressing the challenges associated with facial recognition technology at U.S. entry-exit points requires collaborative efforts. Next steps include:

- Advocating for Robust Opt-Out Procedures: Ensuring that travelers have a clear and accessible opt-out option is essential to protecting individual rights and privacy.
- Engaging with Lawmakers: Engaging with legislators to strike a balance between security and privacy concerns is crucial.
- Monitoring Technological Developments: Staying vigilant about advancements in facial recognition technology and their implications for border control and traveler rights.

## Advocacy Groups for a Clear and Accessible Opt-Out Procedure
Advocacy groups are indeed fervently advocating for a clear and accessible opt-out procedure in the context of facial recognition technology at U.S. entry-exit points. While specific contacts for these advocacy groups may not be available in the provided information, you can typically find contact details, updates, and ways to get involved on their respective websites. Here are a few prominent advocacy groups involved in digital privacy and civil liberties:

- American Civil Liberties Union (ACLU) https://www.aclu.org/
- Electronic Frontier Foundation (EFF) https://www.eff.org/
- Center for Democracy & Technology (CDT) https://cdt.org/
- Fight for the Future https://www.fightforthefuture.org/

By visiting these organizations' websites, you can access more information about their campaigns, ongoing efforts, and how to support their advocacy for digital privacy rights and clear opt-out procedures in the context of facial recognition technology. Additionally, consider subscribing to their newsletters or following them on social media to stay updated on their initiatives and actions.

## References to Laws and Codes

These references serve as the foundation for the requirements and regulations discussed in the GAO report.

- [8 U.S.C. § 1365b](https://www.law.cornell.edu/uscode/text/8/1365b): Pertains to the entry-exit data system, integrating biographic and biometric records of foreign nationals entering and exiting the United States.
- [8 U.S.C. § 1187](https://www.law.cornell.edu/uscode/text/8/1187): Likely related to individuals allowed to seek admission without a visa, including citizens of Canada and participants in the Visa Waiver Program.
- [8 C.F.R. §§ 212.1](https://www.law.cornell.edu/cfr/text/8/212.1), [214.6(d)](https://www.law.cornell.edu/cfr/text/8/214.6), [217.1](https://www.law.cornell.edu/cfr/text/8/217.1)-[217.7](https://www.law.cornell.edu/cfr/text/8/217.7) : Contains details about immigration status, extensions, and conditions for visitors.
- [22 C.F.R. §§ 41.0-41.3](https://www.law.cornell.edu/cfr/text/22/41.122): Relates to the issuance of visas and entry requirements.
- [12 CFR § 1016.7](https://www.law.cornell.edu/cfr/text/12/1016.7) - Form of opt out notice to consumers; opt out methods.
- [85 Fed. Reg. 74164](https://www.govinfo.gov/app/details/FR-2015-11-27/2015-30093) (citing 8 U.S.C. § 1365b).
- [6 U.S.C. § 1118](https://www.law.cornell.edu/uscode/text/6/1118);Biometrics expansion. see also Comment of Civil Society Organizations, supra note 1, at 4–6.
- [85 Fed. Reg. 74179](https://www.govinfo.gov/app/details/FR-2020-11-19/2020-24707). Collection of Biometric Data From Aliens Upon Entry to and Departure From the United States
- [8 C.F.R. §§ 215.8(a)](https://www.law.cornell.edu/cfr/text/8/215.8) & 235.1(f) (emphasis added). Requirements for biometric identifiers from aliens on departure from the United States.
- [85 Fed. Reg. 56338](https://www.federalregister.gov/documents/2020/09/11/2020-19145/collection-and-use-of-biometrics-by-us-citizenship-and-immigration-services) Comment of the ACLU, ACLU of Ill., ACLU of Mass., ACLU of San Diego & Imperial Counties, and ACLU of Wash. in Opposition to 85 Fed. Reg. 56338 (Oct. 13, 2020), ACLU Biometric Collection NPRM Comment.
- [8 CFR 103.2(b)(9)](https://www.law.cornell.edu/cfr/text/8/103.2): Submission and adjudication of benefit requests. This regulation is mentioned in the context of DHS's authority to require individuals to submit biometric information for background and security checks related to immigration laws.
- [8 CFR 103.16(a)](https://www.law.cornell.edu/cfr/text/8/103.16): Collection, use and storage of biometric information. This regulation is mentioned in the context of proposed changes to regulations by DHS.

## Airports with Facial Recognition

* Hartsfield-Jackson Atlanta International Airport
* Boston Logan International Airport
* Baltimore-Washington International Thurgood Marshall Airport
* Ronald Reagan Washington National Airport,
* Denver International Airport,
* Dallas-Fort Worth International Airport
* Detroit Metropolitan Wayne County Airport
* Gulfport-Biloxi International Airport
* Jackson-Medgar Wiley Evers International Airport
* Harry Reid International Airport in Las Vegas
* Los Angeles International Airport
* Orlando International Airport
* Miami International Airport
* Phoenix Sky Harbor International Airport
* San Jose International Airport
* Salt Lake City International Airport
* Seattle International Airport

## Conclusion

The integration of facial recognition technology into U.S. entry-exit points is a complex issue with far-reaching implications. Balancing the need for border security with individual rights and privacy is an ongoing challenge, one that necessitates continued research, engagement, and vigilance to ensure that the system operates efficiently, securely, and ethically.

## Bibliography

1. Government Accountability Office (GAO). "Facial Recognition Technology: CBP Is Developing a Use of Force Dashboard and Has Implemented Laws Affecting Its Workforce." [PDF] GAO-20-568. July 2020. [https://www.gao.gov/assets/gao-20-568.pdf](https://www.gao.gov/assets/gao-20-568.pdf)
2. U.S. Customs and Border Protection (CBP). "Biometrics." CBP Official Website.[https://www.cbp.gov/travel/biometrics](https://www.cbp.gov/travel/biometrics)
3. U.S. Government Accountability Office (GAO) Official Website.[http://www.gao.gov](http://www.gao.gov)
4. "Facial Recognition Technology: Commercial Uses, Privacy Issues, and Applicable Federal Law." [Archived] via The National Law Review. January 2020. [https://archive.ph/A9UTE#selection-279.0-279.66](https://archive.ph/A9UTE#selection-279.0-279.66)
5. "Facial Recognition and Privacy: A New Frontier in Commercial Surveillance." [Archived] via The National Law Review. November 2020.[https://archive.ph/VUAmu#selection-301.0-301.75](https://archive.ph/VUAmu#selection-301.0-301.75)
6. "How to prevent customs agents from copying your phone’s content." [Archived] https://archive.ph/A9UTE#selection-279.0-279.66
7. "The Number of People Arrested After Facial Recognition Errors Is Growing." [Bypass] https://12ft.io/proxy?&q=https%3A%2F%2Freclaimthenet.org%2Fthe-number-of-people-arrested-after-facial-recognition-errors-is-growing
8. "Man was arrested, held for six days over faulty facial recognition tech: lawsuit." https://nypost.com/2023/10/04/man-was-arrested-for-six-days-over-faulty-facial-recognition-tech-lawsuit/
9. "San Francisco becomes first city in U.S. to ban facial-recognition software." [Archived] https://archive.ph/VUAmu#selection-301.0-301.75
10. "Collection and Use of Biometrics by U.S. Citizenship and Immigration Services" https://www.federalregister.gov/documents/2020/09/11/2020-19145/collection-and-use-of-biometrics-by-us-citizenship-and-immigration-services
11. "Skip Surveillance: Opting out of Face Recognition at Airports" [EFF] https://www.eff.org/deeplinks/2019/04/skip-surveillance-opting-out-face-recognition-airports
12. "Objecting to Warrantless, Suspicionless Electronic Device Searches at the Border" [EFF] https://www.eff.org/deeplinks/2022/07/eff-and-aclu-file-amicus-brief-objecting-warrantless-suspicionless-electronic
13. "Federal Judge Makes History in Holding That Border Searches of Cell Phones Require a Warrant" [EFF] https://www.eff.org/deeplinks/2023/05/federal-judge-makes-history-holding-border-searches-cell-phones-require-warrant

Please note that some of the sources are archived versions of web pages, as indicated by the "[Archived]" label. These sources provide valuable insights into the issues surrounding facial recognition technology, privacy concerns, and relevant federal laws.

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[Face Recognition in the Real World](https://hackmd.io/zAdB_yTPQGq_fz4M8ucZWw?view)