Press releases issued today by US Customs and Border Protection (CBP) and Sen. Edward Markey suggest that CBP and its parent agency, the Department of Homeland Security (DHS), have cancelled or postponed, at least for now, their plans to require mug shots of all US citizens leaving, or returning to, the US.

But rather than admit that it has partially backed down or postponed some of its most offensive and intrusive plans in the face of public and Congressional outrage, CBP has sent reporters a statement alleging that our report breaking the story and others that followed contained “incorrect claims” about CBP plans:

We stand by our story.

Until this Monday, when we called attention to the official DHS/CBP notice, the officially-approved and officially-stated intent of the DHS and CBP was to propose rules requiring U.S. citizens on international flights to be photographed.

If “there are no current plans” for mandating mug shots of US citizens, that’s becuuse DHS and CBP plans changed this week in response to public and Congressional outrage and the likelihood that pursuing these plans now would derail DHS and CBP hopes for approval of its current facial recognition programs by airport authorities such as the Seattle Port Commission, which will consider the issue next Tuesday (and which had been misleadingly told by the CBP official responsible for the planned rulemaking that facial recognition would not be mandatory for US citizens).

The official DHS/CBP notice of planned rulemaking meant what it said. It was issued through a formal process of agency review. It wasn’t  a typo, a mistake, or issued by a “rogue” employee.

We vigorously contest the CBP assertion that our story contained any “incorrect claim”.

Such DHS and CBP allegations, in response to truthful reporting, only further discredit the DHS and CBP, and lower whatever little credibility they may have had.

Was this a trial balloon to find out whether the DHS had finally reached the limits of our willingness to be treated like criminals whenever we fly? And if so, has the DHS partially backed off, at least for now? Maybe.

If the DHS has changed its public statements, or maybe even some of its plans, that is a direct result of the immediate outpouring of public and Congressional outrage that resulted as soon as they became widely known.

But that doesn’t mean that there’s no longer cause for concern. Just the reverse.

Although the DHS is stonewalling our FOIA requests (see  1, 2, and 3) for information about its policies, plans, and agreements with airports and airlines, everything we have seen for years from the DHS and its industry partners makes clear that they are all planning, preparing, and expecting that facial recognition will become ubiquitous throughout airports, applied to all international and domestic air travelers, built into common-use infrastructure, and used for airlines’ business purposes as well as for government surveillance and control. This is already being incorporated into planning of airport infrastructure and facilities for “surveillance by design”.

The only things that remain in question are when (not whether) this will happen, how it will be enforced, and how (not whether) the data collected by airlines and airports will be shared with government agencies and jointly used.

We have no reason to believe that these plans have changed, even if they have been postponed.

We also dispute the reference in CBP’s press release to CBP “consultation with… privacy experts”. We were part of one of CBP’s three meetings with privacy and civil liberties organizations about this issue, and we’ve gotten detailed reports from participants in the others, the most recent of which was this week.

None of these meetings can credibly be described as “consultations” with privacy experts. CBP staff talked at us, refused to answer our questions or respond to our objections, ignored our written follow-up questions and FOIA requests, and refused to investigate our complaints or tell us what, if any, redress mechanisms existed for aggrieved travelers.

These meetings were exercises in charades and stonewalling, not consultations.

We still don’t know what DHS or CBP are really doing, or plan to do. We’ve seen a version of this DHS “now you can, now you can’t” movie before, when the TSA first told Congress and the public that travelers would be able to opt out of virtual strip searches (“imaging”) if they submitted to manual groping (“enhanced pat-downs”), then without warning or any formal rulemaking decided that “imaging” could be mandatory.

Members of the public and of Congress should not trust DHS press releases, or rely on them to reign in DHS excesses. The DHS has demonstrated a willingness to lie brazenly about its activities and plans as well as about ID requirements for travel. And the DHS has demonstrated a willingness to ignore the law. Current DHS uses of facial recognition on air travelers are already in flagrant violation of multiple Federal laws.

Travel by common carrier is a right that the DHS has a legal duty to protect, but the DHS treats it as an inherently suspicious activity that justifies treating travelers as criminals subject to virtual strip searches (“imaging”), mug shots, and recording of their lawful travels in lifetime surveillance dossiers in the “Automated Targeting System”.

The lesson in the latest events is not that the DHS has exercised any self-restraint, but that external, preferably judicial, oversight is essential.

We expect that the DHS will continue to violate travelers’ rights, increasingly, unless and until (a) courts order them to comply with the law, (b) Congress enacts strong, explicit, enforceable restrictions on their authority over travelers, and/or (c) members of the public refuse to comply with illegal DHS demands. Just say “no”.

We stand by the recommendations we have made to the Seattle Port Commission, which will be the first public body to consider this issue at its meeting next Tuesday.