US biometric surveillance divides state and centre
The use of biometric data for surveillance is extensive and rising
Governments are collecting, storing and using vast amounts of biometric data, both purposefully and inadvertently, as they deploy smart surveillance technologies.
What next
As the variety and volume of biometric data gathered and used by US government agencies increase, states will be politically divided on using them against undocumented immigrants. Policy debate will evolve from limiting commercial use of biometric data to regulating government use of such data. Since the underlying concern is protection from government overreach, the issue could unite conservatives and progressives. However, if politicians frame it more narrowly as an immigration or crime-prevention issue, regulations will face divisions along party lines and vary state-by-state.
Subsidiary Impacts
- Democratic-leaning states are more likely to be conscious of potential data misuse.
- Nationwide protections await a federal privacy law.
- Funding pressures will lead many states to seek technological solutions to law enforcement problems.
Analysis
Biometrics is defined as the measurement and analysis of unique physical or behavioural characteristics, especially as a means of verifying personal identity. These include data such as fingerprints, pictures, voice recordings, DNA and iris scans, which can used by government agencies for surveillance.
Scope of use
Such data are used extensively:
- In 2016, a Georgetown University study of law enforcement image databases determined that 50% of US adults have their likeness stored in at least one facial recognition network at the local or national level.
- Currently, 16 of 50 US states allow the FBI to use driver's licence photos for facial recognition analysis in criminal investigations.
- Twelve states allow Immigration & Customs Enforcement (ICE) to use driver's licence photos to search for undocumented immigrants.
These examples represent a fundamental shift in the use of biometrics away from specific investigations (seeking a specific person of interest from a list of known criminals with a warrant defining the scope of the investigation) towards blanket surveillance of law-abiding citizens.
'Big brother'
The largest known federal repository of biometric data is the Automated Biometric Identification System (IDENT) maintained by the US Department of Homeland Security (DHS).
This repository was developed in 1994 for the immigration service and has evolved into a DHS-wide aggregator for storing and processing fingerprints, palm prints, photographs, iris scans and facial images.
Federal agencies besides the ICE that can use and add to IDENT data include:
- the Departments of State, Justice and Defense;
- state and local law enforcement and investigative agencies; and
- foreign partners including law enforcement and intelligence agencies (such as Interpol), and the other members of the 'Five Eyes' alliance (the United Kingdom, Australia, Canada and New Zealand).
The breadth and power of this system cannot be overstated.
Not only can all these agencies query this database, they can, and do, add to it with each query. Fingerprints collected from an arrest in Chicago could later be used to track citizenship status when that same person tries to enter the United States at a Los Angeles airport.
According to DHS data, IDENT:
- captures 200,000 fingerprints per day;
- is used to identify (with 99% accuracy) over 100,000 travellers daily at US ports of entry;
- contains over 200 million unique identities (people); and
- processes 300,000 queries per day across all agencies/authorised users.
IDENT is designed and maintained by Gemalto, a subsidiary of France's Thales conglomerate.
Weak accountability
Biometric data-based surveillance is broadening the US surveillance apparatus, where several federal agencies have long been deeply and problematically active, as revealed by the Snowden leaks.
Yet there is little, if any, transparency or accountability on how such data are collected and used.
The federal government requires privacy impact assessments (PIA) to be done any time a federal agency is collecting or processing personal data, which includes biometric data. A PIA documents what data are collected, how they are used and secured, and what privacy measures have been taken.
However, the IDENT PIA is also clear that "once the collected data, regardless of source, are stored in IDENT it will be used for national security, law enforcement, immigration, intelligence, and other homeland security mission related purposes". This is a broad umbrella.
Moreover, there is no federal law against blanket searches of biometric data.
State-level pushback
Many states oppose Trump's hard line on immigration
Pushback against the use of biometric surveillance is rising, partly due civil society organisations such as the American Civil Liberties Union, which rallied San Francisco residents on banning the use of facial recognition technology by the city police (see INTERNATIONAL: Citizens are key to city surveillance - July 4, 2019).
The most substantive pushback is originating at the state level -- for multiple reasons.
Privacy
Several states, including Washington and Vermont, have passed laws prohibiting law enforcement use of biometric data without a court-ordered search warrant to preserve privacy (see INTERNATIONAL: US federal data law may be altered - October 24, 2018). Meanwhile, three states (Illinois, Washington and Texas) have passed biometric information privacy laws to protect their citizens from the actions of businesses.
Immigration
Several states are pushing back against biometric data use in the context of President Donald Trump's hard line on immigration, and the use of such data to facilitate deportation.
The core issue in this debate is the notion of 'sanctuary jurisdictions', which are states, cities or counties that explicitly refuse to use any of their resources, including biometric data sets, to support federal efforts to arrest and deport undocumented immigrants.
The issue is divisive:
- Eight relatively progressive-leaning states, including California, Illinois and New York, and Washington DC, have implemented policies in favour of providing sanctuary for immigrants.
- Nine (relatively conservative-leaning) states, including Georgia, Missouri and Texas, have policies requiring state and local (city/county) governments to enforce federal immigration laws.
Conflicting goals
ICE has sought and obtained biometric data from states without search warrants. Since the agency does not disclose the full breadth of such requests, it is unknown how many states comply with or reject them.
At least two states (Vermont and Washington) complied with these requests initially, but have recently required that ICE obtain court orders for any future searches.
This is especially problematic since many states permit undocumented migrants to get driving licences to ensure road safety; ICE's use of such data therefore impedes this wider public safety goal.
Alignment of interests
Restrictions to protect dissidents from biometric surveillance are weak
Even so, divisions between the states and the federal centre on this issue should not be overstated.
Of 52 state and federal agencies known to use facial recognition software, only one -- the Ohio Criminal Investigations Bureau -- has a policy explicitly prohibiting police from using face recognition to track individuals engaging in protected free speech (eg, political dissidents).
Moreover, US city and state governments are perennially underfunded. Currently 40 of the 50 states have budget deficits, and law enforcement is just one area where many states are under pressure to do more with less.
This makes states more open to seeking help (on both human and technical resources) from the federal government, even if that means sharing data with federal agencies in return.
It also means that makers of biometric identification and surveillance technologies can generally be assured that any technology which acts as a force multiplier (or reduces risk/threat) for law enforcement, stands a good chance of securing some of the scarce capital funding available.
