Sen. Booker latest to propose regulating government’s use of biometrics

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The use of facial recognition in public housing funded by the US Department of Housing and Urban Development (HUD) would be banned by the No Biometric Barriers to Housing Act introduced in the House Friday by Sen. Cory Booker (D-NJ), a Democratic presidential candidate. Booker’s legislation is the latest in a string of bills introduced in both the House and Senate by lawmakers that would either ban or regulate the use of biometrics in one form or another by federal agencies.

Both Republican and Democratic lawmakers have stated they believe there needs to be restraints, at least temporarily, on the expansion of the government’s deployment of biometric technologies, especially facial recognition, which some see as an intrusion on privacy rights. So far in the 116th Congress, 69 bills have been introduced in both chambers which would regulate and/or ban the use of certain biometric technologies.

Democrats have introduced more than 40 of the bills, while Republicans have introduced less than half that many. Much of the legislation deals with homeland security and immigration matters.

Given the increasingly polarized political climate in Washington, DC, though, it’s unclear whether any of this legislation – no matter how important some of it is to national security, it’s agreed — will become law between now and the 2020 elections, including those bills that have bipartisan support.

Booker’s legislation is the latest introduced by a Democrat. It would “prohibit the use of biometric recognition technology and biometric analytics in certain federally assisted rental dwelling units” six months after the date of enactment of the legislation. Owners of a “covered federally assisted rental dwelling unit” would be barred from using, or authorizing the use of, “facial recognition technology and biometric analytics, physical biometric recognition technology and biometric analytics, or remote biometric recognition technology and biometric analytics in the dwelling unit or in any building or grounds containing the dwelling unit.”

“Using facial recognition technology in public housing without fully understanding its flaws and privacy implications seriously harms our most vulnerable communities,” Booker said. “Facial recognition technology has been repeatedly shown to be incomplete and inaccurate, regularly targeting and misidentifying women and people of color. We need better safeguards and more research before we test this emerging technology on those who live in public housing and risk their privacy, safety, and peace of mind.”

A companion bill, HR 4008, was introduced in the House last June by Rep. Clarke, Yvette D. (D-NY) and referred to the House Committee on Financial Services where no action has been taken.

Booker’s bill was referred to the Senate Committee on Banking, Housing, and Urban Affairs.

Booker’s bill – a year after becoming law — would require the Secretary of Housing and Urban Development to provide the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services a report that describes:

• Any known usage of facial recognition technology and biometric analytics, physical biometric recognition technology and biometric analytics, or remote biometric recognition technology and biometric analytics, in any covered federally assisted rental dwelling unit during the five years preceding the date of enactment of the act;
• The impact of those technologies and biometric analytics on the residents of those covered federally assisted rental dwelling units;
• The purpose of installing those technologies and biometric analytics in those covered federally assisted rental dwelling units;
• Demographic information about the residents of each covered federally assisted rental dwelling unit where the usage of those technologies and biometric analytics occurred; and,
• The potential impacts on vulnerable communities of additional usage of facial recognition technology and biometric analytics, physical biometric recognition technology and biometric analytics, or remote biometric recognition technology and biometric analytics in covered federally assisted rental dwelling units, including impacts on resident privacy, civil rights, and fair housing.

In June, Rep. Mike McCaul (R-TX) and Sen. Martha McSally (R-AZ) introduced the Biometric Identification Transnational Migration Alert Program Authorization Act of 2019 – HR 3377 and S 1933 respectively. Both remain in committee, as do dozens of other bills introduced during the 116th Congress which would regulate the use of biometrics in one way or another.

McCaul and McSally’s legislation would establish within the Department of Homeland Security (DHS) a program “to be known as the Biometric Identification Transnational Migration Alert Program,” or BITMAP, “ to address and reduce national security, border security, and terrorist threats before such threats reach the international border of the United States.”

Under BITMAP, the Immigration and Customs Enforcement director, in consultation with the Secretary of State, appropriate representatives of foreign governments, and the heads of other federal agencies, would be required to “facilitate the voluntary sharing of biometric and biographic information collected from foreign nationals for the purpose of identifying and screening such nationals to identify those nationals who may pose a terrorist threat or a threat to national security or border security.”

The bill would also “provide capabilities, including training and equipment, to partner countries to voluntarily collect biometric and biographic identification data from individuals to identify, prevent, detect, and interdict high risk individuals identified as national security, border security, or terrorist threats who may attempt to enter the United States utilizing illicit pathways.”

Additionally, BITMAP would provide capabilities, including training and equipment, to partner countries to compare foreign data against appropriate US national security, border security, terrorist, immigration, and counterterrorism data, including the following:

• FBI’s Terrorist Screening Database, or successor database;
• FBI’s Next Generation Identification database, or successor database;
• Department of Defense Automated Biometric Identification System (ABIS), or successor database;
• DoD’s Automated Biometric Identification System (IDENT), or successor database, and any other database, notice, or means that the secretary of DoD, in consultation with the heads of other federal departments and agencies responsible for such databases, notices, or means, designates;
• Provide partner countries with training, guidance, and best practices recommendations regarding the enrollment of individuals in BITMAP; and
• Ensure biometric and biographic identification data collected pursuant to BITMAP are incorporated into appropriate US government databases, in compliance with the policies and procedures established by the Privacy Officer appointed under section 222 of the legislation.

Similarly, Rep. Clay Higgins (R-LA), introduced H.R 1729 which would amend the Homeland Security Act of 2002 to establish the Office of Biometric Identity Management within DHS to lead the department’s biometric identity services to support efforts and activities relating to anti-terrorism, counterterrorism, border security, credentialing, national security, and public safety.

The legislation would “enable operational missions across [DHS] by receiving, matching, storing, sharing, and analyzing biometric and associated biographic, and encounter data.” It would also deliver biometric identity information and analysis capabilities to DHS and its components; appropriate federal, state, local, and tribal agencies; and appropriate foreign governments and private sector entities.

It would support the law enforcement, public safety, national security, and homeland security missions of other federal, state, local, and tribal agencies, as appropriate; manage the operation of DHS’s primary biometric repository and identification system; manage Biometric Support Centers to provide biometric identification and verification analysis and services to DHS, appropriate federal, state, local, and tribal agencies, appropriate foreign governments, and appropriate private sector entities; oversee implementation of DHS-wide standards for biometric conformity; and work to make such standards government-wide.

In late October, Sen. Patrick Leahy (D-VT) introduced S. 2694, which would place restrictions on searches and seizures of electronic devices at the border. Specifically, DHS would be disallowed from accessing any electronic device which requires a password, passcode, fingerprint, or other biometric identifier.

In July, the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement Act, or the BELIEVE Act, was introduced by Sen. Rand Paul (R-KY). It would allow any biometric background check performed with respect to an alien during the 1-year period immediately preceding the alien’s submission of an application for an adjustment of status under subsection (a) of the bill would be deemed “sufficient for meeting the biometric background check requirement” for the allocation of employment-based visas provision of the legislation.

With all but a few Democrats focused with impeaching President Donald Trump and Republicans on offense, not much is getting done in Washington these days, as is evidenced by the lack of action on any of the legislation. It could be well into next year before there is any substantive action seen on any of the bills, despite general acknowledgment that the legislation that deals with important national security matters and looming privacy rights concerns need to be addressed sooner rather than later. But, it is a wait and see situation for the time being.

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