An interview with the head of US Customs and Border Protection (CBP) published this month by the U.S. Military Academy as part of a “View From The Foxhole” series provides an unusually revealing, and disturbing, picture of the expansion and globalization of surveillance and control of travelers. It also highlights the ways that policy is being “laundered” through the rationale of “compliance with international standards” to avoid any domestic political debate in the US or other collaborating countries.
CBP Commissioner Kevin K. McAleenan begins his overview of the role of the CBP by referring to “people who are… seeking that permission to travel to the United States”.
But US citizens don’t need “permission” from CBP or any other government agency to travel to the US. McAleenan’s comment makes clear the extent to which the US government has arrogated to itself, and now takes for granted, the illegitimate authority to condition the exercise of the right to freedom of movement on government permission.
CBP Commissioner McAleenan doubles down by asserting that “we have the responsibility to interview and inspect all travelers and make decisions on whether they present a risk.”
But that’s not true either. CBP’s authority to inspect travelers is limited to determining whether there is probable cause to charge them with violations of the law. We have a system of criminal law, not a pre-crime system of “risk-based” predictive denial of rights.
McAleenan makes yet more overbroad claims of CBP authority with respect to automated facial recognition of travelers: “We have the entry-exit mandate that CBP was given in 2014 to ensure biometric exit is captured for anyone leaving the country.”
Actually, the Congressional mandate for biometric exit is limited to non-US persons. But speaking to a sympathetic West Point audience, McAleenan doesn’t try to pretend, as CBP officials have done in meetings with us and in other contexts, that current use of facial recognition at airports is “just a test” or that US citizens can opt out.
Rather, McAleenan expects that automated facial recognition will be expanded to everyone crossing the US border by any means of transport: “We… want to get to the point where we can use biometrics to know who’s in and who’s out of the country. We think they’ll enable that beyond the air environment and certainly in the sea environment but also in the land border.”
In the West Point interview, McAleenan also contradicts the repeated CBP and DHS claims that airlines aren’t interested in shared access to and use of biometric data about travelers. Asked, “How do you work with the private sector to ensure their participation in this mission?”, McAleenan replies, “We find that sweet spot, ‘Hey, we can enable your traveler. We can provide a better customer experience for your boarding process, and turn that around and make your international arrivals more efficient.'”
McAleenan also makes clear that the goal of CBP and the US government is to make these systems of dragnet surveillance and permission-based control of travel into global norms: “The next challenge that… we need to tackle, is how can we take these national capabilities and make them more effective on the international side”. McAleenan’s description of the range of CBP international “partnerships” for travel surveillance and control, from software licensing to human CBP “advisors” abroad, is worth reading in full.
McAleenan’s comments show that the US in continuing to engage in “policy laundering ” on travel surveillance and control. If international bodies can be pressured to adopt surveillance mandates, national policies can be represented as “compliance with international standards” even if those standards were adopted at the behest of the US and its collaborators.
However, McAleenan’s interview reflects a shift from ICAO to the UN Security Council as the venue for this US policy laundering on travel surveillance and control: “Two very important U.N. Security Council resolutions over the last two and a half years, 2178 and 2396, both have focused on the need for that global capacity-building to identify high-risk travel.”
The Security Council is among the least transparent and democratic of UN bodies, with the fewest opportunities for public or civil society participation. Through these two resolutions, the Security Council purports to mandate that, “Member States shall develop the capability to collect, process and analyse, in furtherance of ICAO standards and recommended practices, passenger name record (PNR) data and to ensure PNR data is used by and shared with all their competent national authorities.”
The Security Council also “encourages Member States to employ evidence-based traveller risk assessment and screening procedures including collection and analysis of travel data” — a euphemism for pre-crime algorithmic prediction and prior restraint on the right to travel.
The Security Council also “Decides that Member States shall develop and implement systems to collect biometric data, which could include fingerprints, photographs, facial recognition, and other relevant identifying biometric data.” While the Security Council resolution continues that this is, “in order to responsibly and properly identify terrorists”, it’s clear that the US sees this as a green light to collect biometric data about all travelers, not just those with respect to whom there is probable cause for suspicion of terrorism.