This month some cruise lines are joining airlines and airports in taking mug shots of travelers and passing them on to US Customs and Border Protection (CB P). CBP uses these facial images (“biometrics”) for border and travel control and general law enforcement (policing and surveillance) purposes, and shares them with other Department of Homeland Security components and other domestic and foreign entities.
[Attendance at the most recent face-to-face (F2F) meeting of the AAMVA S2S Governance Committee, Milwaukee, WI, March 22, 2018]
We’ve been trying for years to find out who is really in charge of the national ID database being created to enable states that choose to do so to comply with the Federal REAL-ID Act of 2005.
The national ID records system includes the SPEXS database and the S2S data network and system of central-site applications. S2S, including SPEXS, is operated by AAMVA (a non-governmental non-profit organization whose members are the directors of state driver licensing agencies) and Clerus Solutions (a for-profit private contractor most of whose executives are revolving-door former staff of AAMVA).
But who is setting policy? Who decides what information from state drivers’ license and ID records is included in the central “pointer” database? Who decides what other entities are able to retrieve, mine, or otherwise obtain or use these records?
Are state governments really in control of their residents’ data once it is uploaded to the central site (outsourced to Microsoft as a cloud hosting provider)? Or is Is the US Department of Homeland Security, AAMVA, or Clerus Solutions in the driver’s seat?
Documents we’ve recently received in response to a request to the state of Alaska under that state’s public records law don’t answer many of our questions, but shed more light on on this little-known, aggregated, privately-held database of personally identifying information obtained from state records that already contains data about roughly 50 million US citizens and residents.
We also received explicit confirmation from the minutes of a June 2017 meeting (p. 64 of this PDF file) that AAMVA staff and state driver licensing officials expect that participation in S2S and SPEXS will be added to the criteria used by the DHS to determine whether to certify or re-certify states as “compliant” with the REAL-ID Act: 
The latest batch of records we received (see related records released to us earlier here) is a disordered jumble bundled into a single PDF file. Below are some of the other noteworthy details, with references to page numbers in this PDF file:
The DHS is proposing to expand its biometric identification and surveillance programs, and its collaboration with commercial entities in biometric-based surveillance, with the creation of a new database of “External Biometric Records” (EBR). EBR would include (1) biometric identifiers (such as facial photos, iris scans, fingerprints, DNA profiles, etc.) and (2) logs of the location, date, and time where each image or biometric sample is created. EBR records would be aggregated from commercial sources, and available for use by all DHS components and sharing with other Federal, state, local, and foreign entities.
The DHS is also proposing to exempt EBR from most of the requirements of the Privacy Act, including the right of individuals to find out what information about them is in the database and to what other government agencies or third parties it has been disclosed.
Today we filed comments, together with four other national civil liberties and human rights organizations — Government Information Watch, the Cyber Privacy Project (CPP), Restore the Fourth, Inc., and the National Immigration Law Center (NILC) — objecting to the DHS proposals as unconstitutional and contrary to Federal law.
Senators Mike Lee (R-UT) and Ed Markey (D-MA) have sent another joint letter to Secretary of Homeland Security Kirstjen Nielson renewing their objections to requiring US citizens to submit to mug shots (“facial recognition”) as part of a DHS “biometric exit” program for identifying and tracking international travelers departing from US airports and seaports.
The letter sent last Friday is a follow-up to an earlier letter six months ago, in which the Senators told the DHS that such a requirement for US citizens is “facially unauthorized”:
Most crucially, while Congress has repeatedly voted to authorize biometric entry-exit scanning of foreign nationals, it has never authorized biometric exit screening for U.S. citizens. In fact, Congress has pointedly neglected to authorize DHS to use the program on U.S. citizens for any purpose. Additionally, while airport infrastructure may not be conducive to separate boarding procedures for U.S. citizens and non-citizens, convenience should not be placed above congressionally mandated requirements. We are concerned that the use of the program on U.S. citizens remains facially unauthorized.
One of the major goals of the REAL-ID Act of 2005 was to create, and to pressure state governments to participate in, a national database of drivers’ licenses and state-issued ID cards.
The REAL-ID Act requires that, “To meet the requirements of this section, a State shall … Provide electronic access to all other States to information contained in the motor vehicle database of the State.”
In practice, the only available or affordable way for a state to comply with this part of the REAL-ID Act is to participate in the “State-to-State” (S2S) data sharing system operated by AAMVA and built by an AAMVA contractor, Clerus Solutions. AAMVA says that, “For those states … choosing to comply with REAL ID… the Department of Homeland Security has indicated that participation in S2S will be required for the state to be REAL ID compliant. This is because… the law and regulations governing REAL ID include requirements for state licensing agencies to connect their databases.”
Despite its name, which might be taken as implying that it is merely a messaging system, S2S relies on a centralized national database, “SPEXS”, which contains a record for each drivers’ license or ID card issued by any participating state or territory.
The DHS has been certifying states and territories as “compliant” with the REAL-ID Act, without regard for whether they have complied with this provision of the Federal law.
But that begs the question of how many states have uploaded information about how many of their residents to the national database in order to comply with the REAL-ID Act.
Are records of drivers’ licenses and ID cards issued by your state or territory already included in the national database? If not, when will they be?
US Customs and Border Protection (CBP) has published a new Privacy Impact Assessment (PIA) for its Automated Passport Control (APC) kiosks and Mobile Passport Control (MPC) apps. Unlike most PIA’s, this one does not say why it was prepared, or what, if anything, about the programs it assesses has changed. But it appears to be a response — although an inadequate and possibly still a factually inaccurate one — to some of our complaints.
At many international airports and some cruise ports in the US, travelers — including US citizens — have to submit their mug shots to CBP through either an APC kiosk or the MPC smartphone app before they are allowed to proceed to CBP officers for customs, immigration, and agricultural inspections. This requirement is enforced by “line minders” manning the velvet ropes and directing pedestrian traffic inside “sterile” arrival areas. These line minders are employed by the airline, airport, and/or their contractors or sub-contractors, making it easy for CBP to deny any responsibility for their actions.
In January of this year, we were part of a meeting between civil liberties and human rights organizations and CBP officials on the subject of these “biometric entry/exit” schemes.
The CBP officials we met with in January denied that anyone is required to use the APC kiosks, contrary to our experience and that of other participants in the meeting.
When we complained that CBP hasn’t complied with even the minimal notice requirements of the Privacy Act and the Paperwork Reduction Act (PRA) for this sort of data collection, CBP’s Privacy Officer responded, “I do not consider this program to be operating in violation of the Privacy Act, therefore, I have nothing to investigate.”
But although CBP didn’t conduct an “investigation”, it does appear to have conducted a new “assessment” and published a new set of claims about what it is doing.
What does CBP now say about its mug shots of arriving travelers? And is it true?
We call B.S.
A press release last week from Unisys gives a disturbing glimpse into the extent to which border guards — possibly including US Customs and Border Protection (CBP) and other components of the US Department of Homeland Security — are making decisions on the basis of automated “pre-crime” predictions of future bad actions or bad intentions.
Unisys describes its “LineSight” (TM) product as,
[N]ew software that uses advanced data analytics and machine learning to … enable border agents to make … on-the-spot decisions about whether to trigger closer inspection of travelers … before admitting them into a country…. The solution [sic] uses advanced targeting algorithms to continuously ingest and analyze high volumes of data from multiple sources and to flag potential threats in near real time. For travelers crossing borders, LineSight assesses risk from the initial intent to travel and refines that risk assessment as more information becomes available – beginning with a traveler’s visa application to travel, reservation, ticket purchase, seat selection, check-in and arrival.
Think about what this means: This is not a tool for investigation of illegal conduct or prosecution of people who have committed crimes. It presumes that government agencies will be sufficiently deeply embedded in travel industry infrastructure and have the surveillance capability to know as soon as you form an “initial intent to travel”. It’s being marketed to government agencies as a “pre-crime” system alleged to have “pre-cognitive” ability to predict intentions and future actions, and to generate its own algorithms for doing so:
“Many legacy border security solutions identify potentially risky travelers and cargo based on previously known threats – which is kind of like driving a car and only using your rear view mirror,” said Mark Forman, global head of Unisys Public Sector….
LineSight does not depend solely on pre-defined pattern matching rules; it also includes predictive analytics and machine learning that allow the system to learn from experience and automatically generate new rules and algorithms to continuously improve assessment accuracy over time.
Decisions about which travelers should be subjected to more intrusive searches should be be made on the basis of probable cause to believe that crimes have been committed, not on the basis of fantasies of “pre-cognitive” pre-crime prediction.
It’s wrong to delegate judicial decisions to administrative agencies, wrong to further delegate those decisions to software ‘bots, and wrong to set those robots loose to make up their own rules to govern whch individuals are subjected to searches or other sanctions.
Congress is currently considering multiple “immigration” bills containing provisions for “continuous screening” or “continuous vetting” of foreign residents, visitors, and would-be visitors to the US. As we have noted previously, “continuous screening” and “continuous vetting” are euphemisms for “continuous surveillance and control”.
These so-called “immigration” bills would not be limited to foreigners. Many of them would include US citizens exercising our right to leave our country, and to return, in pre-crime travel surveillance and control schemes.
One question that has been raised about some of these proposals is (1) whether they would require airlines to provide the DHS with additional information about air travelers, or require information about potential passengers to be provided further in advance of scheduled flights, and (2) if so, whether this would violate the US “agreement” with the European Union regarding US government use of PNR data obtained from airlines.
Here’s some background, and some analysis, of what “continuous vetting” might mean for US government use of data from airlines, and for the US agreement with the EU:
Senior officials of US Customs and Border Protection (CBP) came to San Francisco last week to meet with representatives of the Identity Project and other civil liberties and human rights organizations regarding CBP “biometric entry/exit” schemes. These CBP programs, some of which are already in operation, involve taking digital mug shots of international travelers — including US citizens — as they enter and leave the US. The meeting in San Francisco was a follow-up to one in Washington, DC, in August 2017.
Debra Danisek, CBP Privacy Officer, and John Wagner, Deputy Executive Assistant Commissioner in charge of the CBP “Office of Field Operations”, were accompanied to the meeting by CBP national, regional, and SF Bay Area local CBP policy and operations staff.
We welcomed the opportunity to point out to the CBP officials in charge of these programs that — especially as they apply to US citizens — they violate multiple Federal laws, involve unconstitutional warrantless, suspicionless dragnet surveillance of how we exercise our right to assemble as protected by the First Amendment, and should be abandoned.
It was an infuriating meeting, however. Rather than offering explanations for many of the CBP’s practices, the CBP officials across the table flatly denied much of what is happening at airports throughout the US, even in the face of first-person testimony to the contrary from many of the civil liberties advocates in attendance.
Since they wouldn’t admit that some of the most abusive CBP practices — the ones we thought the meeting had been called to discuss — are actually happening, the CBP officials wouldn’t talk about what, if any, legal basis these practices might have. Meanwhile, these unlawful practices by CBP and other DHS components continue and expand.
Here are some of the counter-factual claims made by CBP in our meeting, and some of the issues left unaddressed: Read More
Invoking memes that we’ve seen and warned about before under both Democratic and Republican administrations, President Trump has attributed the latest version 3.0 of his “Muslim ban”announced today (proclamation, FAQ, explainer) with the need to comply with ICAO and INTERPOL standards for passport issuance, “identity management”, and data sharing about travelers — as though US immigration and asylum policy should be determined by an international technical body for aviation operations, as though such a body has the authority to override US treaty obligations to freedom of movement and “open skies“, and as though predictive pre-crime profiling based on “biographic and biometric data” can be substituted for judicial fact-finding as a basis for denial of the right to travel.
We hope that seeing the “Muslim Ban 3.0” blamed on ICAO standards will lead human rights advocates to pay more attention to ICAO’s standard-setting role and opaque decision-making process in non-aviation matters such as passports, identity management, and data sharing.