We’ll be in Seattle on December 10, 2019, to give public comments (see our detailed written testimony submitted in advance) at a meeting of the Port of Seattle Commission concerning a proposed resolution on use of facial recognition by airlines at the Seattle-Tacoma International Airport (SEA).

This will be the first time that any operator of a US airport has publicly considered any policies to govern use of facial recognition by airlines or on airport property.

The public authorities that operate almost all major US airports have a key role to play in oversight of traveler surveillance systems deployed on their premises by their tenants.

The US Department of Homeland Security (DHS) doesn’t care about the law. DHS has already been using automated facial recognition at airports for several years — at Automated Passport Control (APC) kiosks, US Customs and Border Protection (CBP) inspection stations, and “pilot programs” at departure gates — in violation of multiple Federal laws and despite questions from Congress about the lack of any legal basis for taking mug shots of US citizens.

The DHS plans to expand its collection of mug shots of travelers to include passengers on domestic as well as international flights, and to make submission to facial imaging  mandatory for US citizens — eliminating any possibility to “opt out”, and without waiting for Congress to enact any law purporting to authorize this. Members of Congress have already started asking more questions about this story, which we broke yesterday.

The same CBP official who was sent to Seattle to testify publicly before the Port Commission on October 29, 2019, that US citizens will be able to opt out of facial recognition turns out to be responsible for the CBP’s plans to promulgate regulations by mid-2020 to make photography mandatory for US citizens. If upheld by the courts against the likely challenges, those rules would take effect around the time that a new international terminal at Sea-Tac is expected to open, with Delta Air Lines  planning to deploy facial recognition cameras at its gates and a possibility that the airport itself might deploy airport-owned cameras at  gates shared by multiple airlines.

As we note in our written testimony to the Seattle Port Commission, for more than a year the DHS has ignored our Freedom Of Information Act request (which sought answers to many of the questions later asked by members of the Port Commission at its hearings on this issue), a formal petition for rulemaking by the World Privacy Forum, and questions asked by the Electronic Frontier Foundation following a meeting with CBP officials in San Francisco in january 2018, in which we participated along with WPF, EFF, and others.

Airlines in the US are privately owned and aren’t directly subject to any restrictions on their use of personal data. Airlines have a dismal track record of deliberate disregard for the norms of data security in their storage and sharing of personal data about travelers.

To make matters worse, the DHS has given airlines a financial incentive to collaborate in DHS surveillance of travelers, by giving airlines free use of its automated facial recognition Traveler Verification Service (TVS) on a software-as-a-service basis for airline business process automation purposes, in exchange for airlines installing and operating cameras at departure gates and sending the digital photos of travelers to the DHS.

That leaves the state and local government bodies that oversee operation of public airports as the only publicly-accountable entities with the authority to put the brakes on facial recognition of air travelers — and the surveillance and control it enables.

What can airports do?

Airport operators can, and should, defend the rights of travelers.

The Federal Airline Deregulation Act of 1978 recognizes a “public right of transit” by air, and airport operators have a duty to respect the right to travel by common carrier.

When the state of Washington successfully sued the Federal government to challenge the Executive Order restricting travel to the US from certain Muslim-majority countries, the basis for the state’s standing was its interest in the right of Washington state residents to freedom of movement and association.

The Port Commission has even greater authority over its airline tenants than over Federal agencies. Whatever the merits of DHS claims to authority for the DHS itself to subject travelers to facial recognition, the DHS has no authority to commandeer airline or airport resources or to compel either airlines or airports to help the Feds spy on travelers.

As we say in our written testimony:

Air travelers should not be required to donate their personal data to airlines in order to enter or leave the U.S. Airlines are common carriers required to transport all would-be passengers, in accordance with their tariffs, and have no entitlement to require travelers to identify themselves. If CBP or other government agencies want, and have legal authority, to compel travelers to provide personal information to the government as a condition of entering or leaving the U.S. – which is far from settled law, particularly with respect to U.S. citizens – CBP should collect that information directly from travelers, not force travelers to share it with airlines for airlines’ commercial purposes….

The Port of Seattle can, and should, as a condition of its leases to airline tenants and/or as a general condition of use of Port premises, prohibit its airline tenants from deploying or using facial recognition systems on Port property, using facial recognition to identify subjects of photos taken on Port property, or sharing with government agencies facial images collected on Port property of travelers not suspected of crimes….

It is entirely reasonable for the Port of Seattle Commission to conclude, and you should conclude, that the public interest will be served by such leasing conditions.

An airport where travelers will not be required by airlines to submit to mug shots or facial recognition will be a less stressful and more pleasant environment for travelers.

Sea-Tac International Airport will be a more attractive airport, and members of the public will be more likely to choose Sea-Tac over alternative international gateways or connection points, if you impose such conditions on Port airline tenants as are necessary to assure travelers that they will not be subjected at Sea-Tac to some of the offensive and intrusive measures which place their privacy, personal security, and civil liberties at risk, such as automated facial recognition, which are deployed and used at other airports.

If you’re in Seattle, tell the Port Commission to stand up for your right to travel. Port Commission staff say the agenda for the meeting won’t be posted until December 6th, but have told us that the meeting will start at noon on Tuesday, December 10, 2019 at the Port of Seattle offices at 2711 Alaskan Way (Pier 69) in downtown Seattle. If you drive and you use the Bell Street parking garage, Port Commission staff say they can validate your parking. Members of the public usually get two minutes each for public comments, near the start of the meeting — sign up at the table just inside the meeting room.