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United States Visitor and Immigrant Status Indicator Technology

(US-VISIT)

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Introduction

The most elaborate system of identification in the United States is currently being developed and deployed by the Department of Homeland Security (DHS). The United States Visitor and Immigrant Status Indicator Technology (US-VISIT) is an integrated government-wide program intended to improve the nation's capability to collect information about foreign nationals who travel to the United States, as well as control the pre-entry, entry, status, and exit of these travelers.

DHS deployed US-VISIT at 115 airports and 15 major seaports on January 5, 2004, and the fifty highest volume land ports of entry were phased into US-VISIT on December 29, 2004. All remaining ports of entry will be integrated into the system by December 31, 2005. Exit pilot programs are currently in effect at Baltimore Washington International Airport, Miami Seaport, and 13 other ports of departure. As of January 3, 2005, more than 16.9 million visitors to the United States had been "processed" by US-VISIT. DHS says that US-VISIT has caught 372 individuals wanted for crimes or immigration violations. However, there is no evidence that US-VISIT has ever caught a wanted terrorist.

History

Congress initially directed the Attorney General to develop an automated entry and exit control system to collect records of arrival and departure from every foreign visitor entering and leaving the United States in Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Congress later amended and replaced Section 110 of IIRIRA with the Immigration and Naturalization Service Data Management Improvement Act (DMIA) of 2000. The DMIA directed the integration of existing Department of Justice and Department of State electronic foreign visitor arrival and departure databases, including those created at ports of entry and at consular offices. US-VISIT's development began in response to these mandates from Congress.

The Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) and the Enhanced Border Security and Visa Entry Reform Act have significantly expanded the US-VISIT system. In the USA PATRIOT Act, Congress imposed a requirement for speed in the program's implementation and mandated that DHS be consulted with respect to the establishment of the integrated entry and exit program. The USA PATRIOT Act also introduced the concept of biometrics to establish a technology standard that would be used in the development of the US-VISIT the System.

The Enhanced Border Security Act (EBSA) (pdf) seeks to fully integrate all databases and data systems maintained by the Immigration and Naturalization Service that process or contain information on aliens. The EBSA expanded on the USA PATRIOT Act and the DMIA by increasing requirements for US-VISIT’s integration, interoperability with other law enforcement and intelligence systems, biometrics, and accessibility. Here Congress specifically mandated the establishment of a database containing the arrival and departure data from machine-readable visas, passports, and other travel and entry documents possessed by aliens. By October 26, 2004, these travel and entry documents will also include the use of biometric identifiers in accordance with standards issued by domestic and international organizations. The EBSA further required all carriers to transmit electronically the information of all visitors and crew members arriving and departing the United States by January 1, 2003. Furthermore, the information from the data systems the EBSA describes is to be readily available and easily accessible to any federal law enforcement or intelligence officer responsible for "the investigation or identification of aliens."

Overview

Along with integrating various databases containing visitor information, US-VISIT also scans, collects and uses biometric identifiers of visitors to the United States. An inkless fingerprinting system captures both of a visitor's index fingerprints and a digital photograph is taken. U.S. Customs and Border Protection officers compare the biometric information to travel documents and other information in US-VISIT databases. If a visitor refuses to provide fingerprints or be photographed, he generally is not permitted to enter the country.

US-VISIT includes the interfacing and integration of over twenty existing systems. Among the systems used by US-VISIT are:

Some of these data systems contain more personal information than US-VISIT needs to operate. Some of them also contain information about United States citizens and lawful permanent residents, not just foreign nationals subject to the US-VISIT program.

Data elements used by US-VISIT include the information made available through arrival and departure manifests. This information includes complete name, date of birth, citizenship, sex, passport number and country of issuance, country of residence, United States visa number, date, place of issuance (where applicable), alien registration number (where applicable), address while in the United States, and such other information that the Attorney General, in consultation with the Secretaries of State and Treasury, deems necessary for the enforcement of the immigration laws and to protect safety and national security.

The US-VISIT program initially applied only to visitors traveling to the United States on visas. However, on September 30, 2004, US-VISIT was expanded to collect biometrics from travelers visiting the United States for ninety days or less through the Visa Waiver Program, which includes visitors from Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, San Marino, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, Portugal, and Singapore. Furthermore, countries in the Visa Waiver Program were required by the USA PATRIOT Act to certify that they will issue national machine-readable passports that incorporate biometric identifiers complying with the standards established by the International Civil Aviation Organization.

On December 29, 2004, the 50 busiest land border points of entry were integrated into US-VISIT in Arizona, California, Maine, Michigan, Minnesota, New Mexico, New York, Texas, Vermont, and Washington. Currently, visitors from Canada and Mexico are subject to US-VISIT if they enter the United States through air or sea ports. Biometric identifiers are not collected from Canadians who are only briefly visit the United States and who do not enter the country pursuant to a nonimmigrant visa. Mexican citizens are subject to US-VISIT processing if they enter the country using a Border Crossing Card and travel more than 25 miles from the border in Texas, California and New Mexico; 75 miles from the border in Arizona; and/or stay more than 72 hours in the United States.

Privacy Impact Assessments

The E-Government Act of 2002 requires federal agencies to conduct privacy impact assessments before developing and purchasing new technologies that will collect personal information electronically. An agency is to complete the privacy impact assessment before acquiring or developing the technology so that privacy considerations are built into the technology in the planning stages. In December 2003, Senator Joseph Lieberman, an architect of the E-Government Act, criticized DHS for failing to complete a privacy impact assessment for US-VISIT's biometric technology. DHS finally released the privacy impact assessment (pdf) for US-VISIT just days before it began using the technology in air and sea ports.

US-VISIT's Increment 1 Privacy Impact Assessment (pdf), released in December 2003, stated that the program has a Privacy Officer whose duty it is "to ensure that the privacy of all visitors is respected and to respond to individual concerns which may be raised about the collection of the requested information." However, the Privacy Officer has great discretion to respond to complaints. The assessment failed to provide specific, enforceable procedures for redress if a visitor is denied entry to the United States as a result of US-VISIT, wants to review the information US-VISIT contains about him, or wants to correct inaccurate, irrelevant, outdated, or incomplete information in the system. A subsequently released redress policy did little to secure these rights. Furthermore, DHS appears to have no obligation to keep the vast amount of information in US-VISIT accurate and timely, which could keep innocent visitors from entering the United States and reduce the system's ability to identify legitimate threats to national security or be an effective law enforcement and immigration tool.

The Increment 2 Privacy Impact Assessment (pdf), released in September 2004, is substantially longer and more fully explains the program. US-VISIT's redress process remains highly discretionary and subject to DHS's whim, giving individuals affected by US-VISIT no judicially enforceable right to access or correction of personal information.

US-VISIT Uses

DHS has stated that US-VISIT information is to be made available “only to authorized officials and selected law enforcement agencies responsible for ensuring the safety and security of U.S. citizens and foreign visitors.” According to DHS, US-VISIT is available to U.S. Customs and Border Protection officers at ports of entry, special agents in the United States Immigration and Customs Enforcement, adjudications staff at U.S. Citizens Immigration Services offices, United States consular offices, and “appropriate federal, state, and local law enforcement personnel.”

However, the USA PATRIOT Act requires that US-VISIT be able to interface with law enforcement databases to be used by federal law enforcement to identify and detain individuals who pose a threat to national security. The USA PATRIOT Act also requires that US-VISIT be accessible to all law enforcement and intelligence officers responsible for investigation and identification of aliens. Under the Aviation and Transportation Security Act, the transmission of manifest information may be shared with other federal agencies, upon request, for the purposes of protecting national security. Moreover, the Data Management Improvement Act of 2000 grants the Attorney General discretion to permit other federal, state, and local law enforcement officials to have access to the data contained in the integrated entry and exit data system for law enforcement purposes.

Coordinated efforts, embodied in several pieces of legislation, to enhance immigration procedures and to develop and implement an integrated entry and exit program at all points of entry in the United States has become a reality. US-VISIT integrates data from a variety of data systems and adds biometric identifiers of all visitors to the system, but the scope of use of the information within this collective system is still not clear. The Attorney General possesses broad discretionary powers to allow law enforcement access to this record system.The expansive purpose of "investigative and identification" leaves open serious questions as to whether US-VISIT, a border control system, will be used routinely on the streets of the America.

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Last Updated: December 4, 2007
Page URL: http://www.epic.org/privacy/us-visit/default.html