FOIA Cases

EPIC v. CBP (Biometric Entry-Exit Alternative Screening Procedures)

Case No. 19-689 (2019)

US District Court for the District of Columbia

DOWNLOAD 1-Complaint.pdf pdf 166.1KB

Seeking records concerning CBP’s development of an alternative screening procedure for travelers who opt-out of facial recognition screening.

Background

In Freedom of Information Act lawsuit EPIC v. CBP, EPIC is seeking the public release of all records related to the creation and modification of alternative screening procedures for U.S. Customs and Border Protection’s (CBP) Biometric Entry-Exit Program. CBP’s Biometric Entry-Exit Program employs a

Since 2016, CBP has implemented a series of biometric facial recognition programs in airports to verify the identity of passengers. CBP piloted the program under two initial iterations: the Departure Information System Test (DIST) and the Departure Verification System (DVS).

In 2017, CBP launched the Traveler Verification Service (TVS). Under this program, a passenger’s flight check-in prompts the TVS to compile a “gallery” of pre-existing photographs of the passenger. These photographs may include photographs captured by the Department of State from U.S. passports and U.S. visas, as well as photographs from previous encounters with CBP or the Department of Homeland Security. Before a passenger boards an aircraft, a camera takes a “live” photograph of the passenger, which the TVS compares to the passenger’s gallery to verify the passenger’s identity. After confirming the passenger’s identity, CBP creates an exit record for the passenger.

While photographs of U.S. citizens are deleted by CBP within 12 hours of successful verification, CBP stores photographs of non-immigrant aliens and lawful permanent residents for up to 14 days in a database, and photos of “in-scope” travelers (as defined in 8 CFR 235.1(f)) are stored for 75 years in another database. CBP stores biographic exit records for every traveler, regardless of their citizenship or status. CBP stores biographic exit records of U.S. citizens and lawful permanent residents for 15 years and exit records of non-immigrant aliens for 75 years.

Throughout its implementation of the Biometric Entry-Exit program, CBP has provided vague and inconsistent descriptions of alternative screening procedures in both its “Biometric Exit Frequently Asked Questions (FAQ)” webpage and its privacy impact assessments. CBP has modified these descriptions without adequate notice to the public. In 2018 alone, CBP modified the description of alternative screening procedures on its FAQ webpage at least 3 times. The descriptions of alternative screening procedures have become increasingly limited and uncertain regarding the alternative procedures available to passengers wishing to opt-out of the biometric facial recognition program.

CBP’s creation and modification of alternative screening procedures on its FAQ website underscores CBP’s unchecked ability to modify alternative screening procedures while travelers remain in the dark about how they may protect their biometric data. So far, the official guidance on alternative screening procedures have not been released. Passengers cannot exercise their opt-out rights when they do not know all of the alternative screening procedures that they may be subjected to.

EPIC’s Interest

Public disclosure of records related to CBP’s alternative screening procedures is critical to ensure that CBP’s Biometric Entry-Exit Program adequately safeguards privacy and to enable individuals to make informed decisions about their privacy during travel. As CBP implements the TVS in an increasing number of U.S. airports, this information about alternative screening procedures must be disclosed to the public before biometric screening becomes a non-negotiable condition of travel. EPIC previously pursued similar FOIA litigation involving the use of biometric technology to implement the Biometric Entry-Exit Program. In 2017, EPIC sued CBP for records providing insight about the Biometric Entry-Exit Program.

FOIA Documents

U.S. District Court for the District of Columbia (No. 19-689)

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