US Customs and Border Protection (CBP) has expanded its photography of the faces of all non-US citizens entering or leaving the US (under the “US-VISIT” program) to add mug shots of US citizens leaving the country, starting with all passengers on a daily flight on United Airlines from Washington Dulles Airport (IAD) to Dubai, U.A.E. (DXB).

This exit photo scheme is part of a larger program of biometric traveler tracking for which CBP and DHS recently opened an entire new database management and airport procedures simulation facility.

US citizens have the legal right not to submit to this mass surveillance and travel control scheme. But as with your right to fly without ID, CBP notices at airports won’t tell you that. You need to know your rights and be prepared to assert them.

CBP has not yet complied with the notice and approval prerequisites for requiring US citizens to submit to photography as a condition of leaving the country. The Federal “Paperwork Reduction Act” prohibits the CBP or any other DHS component or other Federal agency from imposing any sanctions on US citizens who decline to participate in the unapproved facial photography component of the “Traveler Verification Service” (TVS). Denial of the right to travel by common carrier is clearly a “sanction” within the meaning of the PRA.

CBP has gotten OMB approval, most recently in 2015, to collect facial photos of non-US citizens leaving the US. But the notice of the proposed information collection, the estimate of the number of individuals who would be affected, and the approval by OMB cover a program limited to “aliens” and not applicable to US citizens:

Biometrics are collected from those aliens specified in 8 CFR 215.8 and 8 CFR 235.1(f). Non-exempt, non-U.S. citizens will have their facial and iris images captured upon entry to and exit from the United States.

CBP now claims that mug shots of US citizens will be deleted within 14 days after the photos are taken, if the subjects of the photos (a) are identified as being US citizens and (b) are not deemed to be of “investigative interest” (whatever that means). Photos of persons of interest, including US citizens, will be retained for up to 75 years.

But the Paperwork Reduction Act forbids any unapproved “collection” of information from US citizens, regardless of whether or for how long that information is retained.

Buried in an obscure Privacy Impact Assessment for TVS quietly posted by the DHS in May 2017 is the following admission that submission to CBP capture of mug shots is optional for US citizens:

Because CBP is charged with collecting biometric information from in-scope travelers and because CBP has an enforcement interest in ensuring all travelers are in possession of valid travel documents, travelers are not allowed to opt-out of the TVS process. However, if a U.S. citizen requests not to participate in the TVS, his or her identity may be verified by an available CBP Officer via manual processing.

The latest update to this Privacy Impact Assessment reiterates that there is a manual “identity verification” alternative to the digital facial photography and automated image matching:

If, after repeated attempts, the identity of the traveler cannot be verified, a CBP Officer escorts the traveler from the immediate area and attempts to verify his or her identity using alternative methods….CBP verifies the identity of the travelers, either through automated facial recognition or manual officer exception processing….

Under CBP’s partnerships with airlines and airport authorities, agreements between CBP and the partner organization will guide opt-in/opt-out procedures. For some participating airlines, for instance, a traveler may request not to participate in the TVS and instead present credentials to airline personnel before proceeding through the departure gate. In other cases, if an individual opts-out of TVS, his or her identity may be verified by an available CBP Officer who will manually verify the traveler’s identity and the authenticity of the documentation. If, in this scenario, the officer is concerned about identity of the individual or the document, he or she may swipe the individual’s passport through a Biometric Exit (BE) Mobile device and conduct a more complete inspection, as appropriate.

US citizens who don’t see their choice to exercise their right to travel by leaving the US (whether temporarily or permanently) as an inherently suspicious act or as tantamount to a crime justifying the government in taking their mug shot may want to carry a copy of this Privacy Impact Assessment (“if a U.S. citizen requests not to participate in the TVS, his or her identity may be verified by an available CBP Officer via manual processing”) and this Federal Register notice (“Biometrics are collected from … aliens…. [N]on-U.S. citizens will have their facial and iris images captured”).

If necessary, point out that the Paperwork Reduction Act precludes all Federal agencies from imposing any sanctions for noncompliance with an information collection request not approved by OMB, and that the OMB approval for collection of facial images of travelers departing from the US  applies only to aliens and not to US citizens.

Airlines are not required by CBP to take mug shots of travelers, and should not claim that this is required by the government or by any law. According to the latest update from CBP:

Commercial air carriers are not collecting photographs on CBP’s behalf or under CBP authorities….

Under the TVS-partners initiative, industry partners collect photographs consistent with their contractual relationships with the travelers and voluntarily provide them to CBP in support of this project. The original collection is subject to the contract between the industry partner and the traveler, to which CBP is not a party.

In practice, exercising your right to opt out could be difficult. Typically, passengers arriving from abroad at US airports — including US citizens — are corralled by line-minders employed by airport or a contractor into the roped-off area with the APC kiosks, and not allowed to leave that area or approach the CBP customs and immigration inspectors unless and until they show the line-minders the APC kiosk receipt including a printout of the photo of their face. Are line-minders who refuse to allow you to leave the APC kiosk area without submitting to facial photography guilty of false arrest and imprisonment?

Are you a US citizen who has tried to “opt out” of CBP facial photography when you were departing from the US? Please let us know what happened.