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'The Public Has a Right to Know': ACLU Sues DHS to Expose Secretive Use of Facial Recognition Technology

"This unregulated surveillance technology threatens to fundamentally alter our free society and is in urgent need of democratic oversight."

Passersby walk under a surveillance camera which is part of facial recognition technology test at Berlin Suedkreuz station on August 3, 2017 in Berlin, Germany.

Passersby walk under a surveillance camera which is part of facial recognition technology test at Berlin Suedkreuz station on August 3, 2017 in Berlin, Germany. (Photo: Steffi Loos/Getty Images)

The ACLU's national and New York arms filed a federal lawsuit Thursday against the U.S. Department of Homeland Security and three of its agencies to expose law enforcement's secretive use of facial recognition surveillance technology.

The new suit in the U.S. District Court for the Southern District of New York came after DHS and the agencies—Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and Transportation Security Administration (TSA)—failed to comply with the ACLU's requests for records under the Freedom of Information Act.

As the lawsuit explains:

Over the past few years, CBP and the TSA have significantly expanded their use of face surveillance technology at airports and the border, raising profound civil liberties concerns. Unlike other forms of identity verification, facial recognition technology can enable undetectable, persistent government surveillance on a massive scale. As this technology becomes increasingly widespread, it threatens to grant the government an unprecedented power to track individuals' movements and associations, posing grave risks to privacy and civil liberties.

As of June 2019, the complaint notes, CBP had photographed more than 20 million travelers entering or exiting the United States through a program called the Traveler Verification Service (TVS). Since TVS launched in 2017, the agency "has partnered with numerous private entities in its facial recognition initiatives, including major airlines and airports," the suit says. At least 26 airlines and airports have committed to employing CBP's face-matching technology.

The TVS program is just one example of the federal government planning for or using such tech on travelers, according to the ACLU. The complaint also points to a "sweeping plan" from TSA to use face surveillance on people flying both domestically and internationally.

"Unlike other ways of verifying a person's identity, face recognition technology can enable persistent government surveillance on a massive scale," Ashley Gorski, staff attorney with the ACLU's National Security Project, said in a statement. "The public has a right to know when, where, and how the government is using face recognition, and what safeguards, if any, are in place to protect our rights."

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"This unregulated surveillance technology threatens to fundamentally alter our free society and is in urgent need of democratic oversight," added Gorski. "The public should know how airlines and companies are helping federal agencies to prop up this mass surveillance infrastructure."

Specifically, as the ACLU's statement outlined, the lawsuit aims to force DHS, CBP, ICE, and TSA to turn over documents concerning:

  • plans for further implementation of face surveillance at airports;
  • government contracts with airlines, airports, and other entities pertaining to the use of face recognition at the airport and other ports of entry;
  • policies and procedures concerning the acquisition, processing, and retention of our biometric information; and
  • analyses of the effectiveness of facial recognition technology.

"When such a technology is placed in the hands of agencies like CBP and the TSA—which have been caught tracking and spying on journalists, subjecting innocent travelers to excessive and humiliating searches, and targeting and interrogating individuals because of their national origin, religious beliefs, or political views—we should all be concerned," Gorski wrote in a blog post Thursday. "And when those agencies stonewall our requests for information about how their agents are tracking and monitoring everyone’s faces, there is even more reason for alarm."

The suit comes as privacy advocates continue to raise concerns about the lack of federal legislation regulating or fully outlawing the use of facial recognition technology by law enforcement agencies and officers or private entities. In the absence of action from Congress, some municipalities have implemented bans or restrictions.

In February, Democratic Sens. Cory Booker (N.J.) and Jeff Merkley (Ore.) introduced the Ethical Use of Facial Recognition Act (S. 3284), which would "create a moratorium on the government use of facial recognition technology until a commission recommends the appropriate guidelines and limitation for use of facial recognition technology."

"Facial recognition technology has been demonstrated to be often inaccurate—misidentifying and disproportionately targeting women and people of color," Booker said at the time. "To protect consumer privacy and safety, Congress must work to set the rules of the road for responsible uses of this technology by the federal government."

Some other critics of the technology have gone further, demanding an outright ban. In July 2019, the advocacy group Fight for the Future launched an ongoing campaign to ban facial recognition. As the groups deputy director, Evan Greer, put it: "This surveillance technology poses such a profound threat to the future of human society and basic liberty that its dangers far outweigh any potential benefits. We don't need to regulate it, we need to ban it entirely."

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