The Legality of Biometric Technology

As technology develops at an exciting yet alarming pace, is the US government prepared to have an ethical debate about its role in national security?

The Center on Privacy and Technology at Georgetown Law recently published “Not Ready for Takeoff: Face Scans at Airport Departure Gates,” a report that argues the illegality and inefficiency of DHS’ new biometric security measure. Under the DHS “Biometric Exit” program, DHS uses facial recognition services to confirm a traveler’s identity before boarding a flight. This system is used at airports in Boston and New York, with several other cities on the growing list.

The principle is simple enough. Travelers stand in front of the camera at the airport gate where a photo is taken. Then, the photo is transmitted to the DHS biometric template that is prepopulated when travelers first book their flights. After confirming that the in-person photo matches the biometric file, passengers are allowed on board. In the case that no file is matched, the passenger will go through a manual check or fingerprint scan.

However, the authors state that DHS has “failed to complete a prerequisite public rulemaking process” to implement the program as required by federal law. DHS has collected scanning data from the public without soliciting for feedback or presenting an opportunity for participation in the process.

The Center also notes the high probability for technical mishaps. According to the report, DHS has yet to conduct a study that establishes the system’s efficacy in preventing fraudulent identities.

Problematically, DHS uses the wrong metric to evaluate the system’s success. DHS currently measures performance based on how often the system correctly accepts travelers who are using true credentials. But if the aim of this system is to detect and stop visa overstay travel fraud—as DHS suggests—it is critical and perhaps more important to assess how well it performs at correctly rejecting travelers who are using fraudulent credentials. Yet DHS is not measuring that.

Among the biggest concerns the authors have is the misuse of such biometric data in the hands of private companies. To prevent data abuse, federal protections would have to be put in place. It’s a consumer issue that the government is understandably reluctant to interfere in.

The crossroad between liberty and security has always existed, and in times of crises, Americans find ground for compromise. In a modern age with technology advancing to a permanent role in policy-making, the debate is unlikely to dissolve.

Read the full report on Georgetown Law’s website. For more information biometric technology, check out the HSDL’s extensive database.