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Legal experts say biometric exit practices at airports may be violating privacy laws


The use of facial recognition technology at U.S. airports is raising concerns among some legal experts, who argue that the program may violate specific privacy rights and that Congress has not fully authorized it, according to a report by MIT Technology Review.

The U.S. Department of Homeland Security has partnered with airlines such as JetBlue and Delta to implement recognition systems at New York’s JFK International Airport, Washington’s Dulles International, and airports in Atlanta, Boston, and Houston, with plans to expand to other airports this summer.

The practice is part of a Congress-mandated initiative that ordered DHS to implement a biometric system for recording the entry and exit of non–U.S. citizens at all air, sea, and land borders. The initiative was fast-tracked earlier this year by President Trump’s executive order.

In the past couple months, U.S. Customs and Border Protection began scanning the faces of all travelers boarding a daily flight to Tokyo from George Bush Intercontinental Airport in Houston, and on flights leaving Dulles for the United Arab Emirates.

Delta will soon begin testing its eGates facial recognition system for travelers flying out of Atlanta and Boston, while JetBlue will trial a similar system for travelers flying out of Boston to Aruba. The data from both airlines’ programs will be sent to CBP.

For both programs, airline-owned cameras at the gate capture passenger photos and compare them with the passport and visa photos associated with the identities of the passengers on a given flight manifest.

Harrison Rudolph, a law fellow at Georgetown Law’s Center on Privacy and Technology, said that people should not be fooled by the CBP’s use of the term “testing”.

He said the technologies are operational in that the agency is already using these systems to generate “biometric exit records” for foreign nationals.

In addition to foreign nationals, CBP is also scanning the faces of U.S. citizens. For instance, only travelers with U.S. passports are able to participate in JetBlue’s “self-boarding” program in Boston.

Rudolph and other privacy advocates say that Congress has never fully authorized the routine collection of facial scans from U.S. citizens at the border.

Weeks after announcing the executive order, the Trump administration revised the order to clarify that the biometric exit program did not include U.S. citizens.

Both JetBlue and Delta have said that the facial recognition identity check is optional, however, it is unclear if this also applies to foreign nationals.

Meanwhile, DHS said that if a U.S. citizen does not want to participate, an available CBP officer “may use manual processing to verify the individual’s identity.”

It is still unclear as to what the CBP does with the information after the agency collects it at the gate and verifies a traveler’s identity, but DHS claims that all data relating to the images is deleted within 14 days.

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