Facial recognition technology in immigration: Biden, biometrics and congressional mandate

Fifty civil and immigrant rights groups sent a letter to President Joe Biden in February asking him to place a moratorium on all federal government use of facial recognition technology and other forms of biometric technology until Congress has authorized its use in specific circumstances with sufficient safeguards.

They claimed, among other things, that the technology disproportionately misidentifies and misclassifies people of color.

The letter refers to a February 2018, study of three commercially available facial recognition programs that found while they had high accuracy rates for lighter-skinned males, there was an error rate of 34.7 percent for darker-skinned females.

This could be a problem when U.S. Customs and Border Protection (CBP) uses facial recognition technology to screen people seeking admission to the United States. Should Biden prohibit CBP from using this technology?

Congressional mandate

Biden can’t stop CBP from using biometric technology at the border. CBP has to comply with a congressional mandate to develop and employ a biometric entry/exit system for recording arrivals and departures to and from the United States, but he can stop CBP from using biometric technologies that can’t accurately identify dark-skinned people.

CBP spent several years testing various biometric technologies to determine which ones would be suitable for such an entry/exit system in the different environments in which individuals are inspected at air, land, and sea ports. Facial recognition technology was chosen because it is suitable in all of these environments — and it can be performed relatively quickly with a high degree of accuracy.

How it works

Facial recognition technology uses computer algorithms to scan and map the distinguishing features of a person’s face and then compares the resulting map to maps of pictures in the person’s passport, his visa, and in the galleries that CBP maintains.

Galleries include photographs captured by CBP during inspections, from passports and visas, and from other sources, such as the Automated Targeting System, which provides maps of faces in law enforcement and intelligence databases.

CBP has deployed facial recognition technology successfully at air, land, and sea ports —

• During boarding of a vessel to travel to the United States or upon arrival, a traveler’s photo is taken at an inspection station;
• The photo is compared against his passport and visa pictures and appropriate galleries; and
• A CBP officer interviews the traveler to validate the results and determine admissibility.

According to CBP, this —

• Simplifies inspections and greatly reduces imposter threats;
• Requires no direct contact between the person seeking admission and the CBP officer conducting the inspection;
• Confirms the identity of the person seeking admission with more accuracy, security, and efficiency than ever before; and
• Streamlines passport checks.

CBP is using facial recognition technology at 196 airports, including 22 at international locations, and at land borders.

“CBP One” mobile app

In early May, CBP received “emergency” approval from the Office of Management and Budget to use an app to collect advance information on undocumented individuals coming to a land border.

Through a series of questions, the app guides users to appropriate services based on their particular needs, such as reporting their arrival, completing documents, or making appointments for CBP services. It employs facial recognition technology, geolocation, and cloud technology to collect, process, and store their information before they reach the border.

This streamlines their travel into the United States by providing needed information before or upon their arrival or departure.

It is particularly useful for asylum seekers.

CBP has enlisted international and nongovernmental organizations, such as the United Nations refugee agency, to use the app. The organizations identify asylum seekers in Mexico who were subjected to the Trump-era Remain in Mexico policy and submit their biographic and biometric information to CBP through the app.

CBP primarily uses this information to determine whether the asylum seekers will be allowed to enter the United States to pursue their claims.

Asylum seekers and others intending to seek admission to the United States can download the app from the Apple App Store and Google Play to their web-enabled smart devices and create a login.gov account to access CBP services.

Opposition

On June 15, Sen. Edward Markey (D-Mass.) and Rep. Pramila Jayapal (D-Wash.) introduced bicameral legislation to restrict government use of facial recognition technology: the Facial Recognition and Biometric Technology Moratorium Act of 2021.

Kate Ruane, senior legislative counsel for the ACLU, supports this bill. She says that the perils of facial recognition technology are very real. The technology’s inaccuracy when used against people of color has led to the wrongful arrests of multiple black men.

It makes sense to regulate the use of facial recognition technology, but it would be a mistake to prohibit or even severely restrict its use on account of fear that it won’t accurately identify dark-skinned people.

It is not inherently more difficult to identify people of color. Early implementations did not include enough people with diverse characteristics.

Algorithms “learn” to identify distinguishing facial features from being shown millions of pictures of human faces. If the faces used to train the algorithm are predominantly white men, the algorithm will have a harder time matching dark-skinned women and vice versa.

This shouldn’t be a problem for CBP.

CBP deals with very large numbers of dark-skinned people. Moreover, CBP continually tests and evaluates the accuracy of its camera technology and its algorithms with assistance from the DHS Science and Technology Directorate and the National Institute of Standards and Technology.

This does not mean that CBP’s facial recognition technology matches are always correct. Perfection is rarely achieved in any endeavor. Nevertheless, facial recognition technology is facilitating the inspection process and providing a fast, non-invasive way for CBP to create the congressionally mandated biometric entry/exit system — and there does not appear to be a better way to achieve these objectives.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.