A Border Officer Told Me I Couldn鈥檛 Opt Out of the Face Recognition Scan. They Were Wrong.
鈥淟ook at the camera,鈥� a Customs and Border Protection (CBP) officer told me as I approached the primary inspection point at the Paso del Norte port of entry. 鈥淚s that the face recognition technology?鈥� I asked. 鈥淚f so, I want to opt-out.鈥� 鈥淟ook at the camera.鈥� 鈥淚 want to opt-out.鈥� 鈥淟ook at the camera.鈥漁n the evening of November 25, 2019, I crossed from Mexico into the United States. Signs in the port noted the new use of face recognition technology and United States citizens鈥� option to 鈥渦ndergo alternative procedures.鈥� After handing over my U.S. passport card, and despite my repeated protests, the CBP officer took my picture anyway.
My data was likely processed through a system of databases, handled by the Department of Homeland Security (DHS), an agency with a long history of employing abusive surveillance techniques. In the last year, DHS has unlawfully tracked journalists and , and was the subject of that exposed the private information, including photos, of thousands of travelers. CBP, a component agency of DHS, began piloting the use of 鈥渂iometric facial comparison,鈥� or face recognition technology, in September 2018 at pedestrian crossing lanes in San Ysidro, California and in Texas. On November 22, 2019, CBP the expansion of the technology to additional pedestrian lanes at ports in , including the Paso del Norte port of entry in . This expansion came despite an internal review raising about the accuracy of such technology and despite serious problems identified by privacy experts about prior expansions at airports. The agency intends to expand the use of face recognition nationally at airports 鈥� despite the documented concerns.CBP deploys a variety of surveillance technologies at the border, claiming national security justifications, but Congress has not explicitly authorized the use of face recognition technology in the immigration context. Congress has that the DHS collect biometric information to track travelers entering and exiting the United States to identify those who overstay their visa, but fingerprints 鈥� and other less troubling methods 鈥� could achieve compliance without the worries surrounding face recognition. Face recognition is one of the forms of biometric tracking and carries a greater potential for growth into a widespread tool for spying on people as they move. Face recognition can be used for surveillance through public video cameras 鈥� mapping a person鈥檚 movement without their knowledge or consent and raising serious Constitutional concerns. Photos collected by state motor vehicle agencies provide another source of data that could easily be coupled with face recognition to create a comprehensive surveillance system equipped to track U.S. citizens and immigrants alike throughout the country.Given the many concerns and shortage of mechanisms to safeguard against abuse, immigration agencies should suspend their use of the technology at ports of entry. CBP claims the technology will facilitate faster border crossings but the technology is , exposing crossers to further inspection if the system falters. Studies also suggest the technology is , with error rates rising significantly when applied to people of color. If I, carrying all the privilege of a white American lawyer, could not opt-out of the invasive technology, what chance do other travelers 鈥� and particularly people of color 鈥� have to assert their rights before an agency patterned on racial profiling and ? Indeed, many other travelers have been forced to submit to invasive face recognition 鈥� despite the agency鈥檚 promises that anyone can opt-out.CBP clearly and consistently that 鈥渋t is not mandatory for U.S. citizens to have their photo taken鈥� and if they wish to opt-out they should 鈥渁dvise the CBP officer when they approach the primary inspection area.鈥� While no one should be subjected to this technology, CBP must minimally provide a meaningful opt-out option that does not mean hours of delay, and must train its agents on this policy. Even the best policies are meaningless if government agents are free to disregard them with impunity.The CBP officer I encountered last week ignored my repeated protests, claimed ignorance of the signs plastering the port, and told me I could not opt-out. 鈥淲hy are you so concerned? We have all your information anyway,鈥� was the last thing the officer said before waving me through. My concern is one we should all share: The continued expansion of surveillance technology at the border, under the guise of efficiency and security, signals the erosion of our privacy rights and the building of a system of government surveillance capable of intrusion in our everyday lives. Taking away every meaningful option to avoid new forms of surveillance simply cannot be an accepted border reality. The Constitution protects us all, even at the border.
