Invasive New Airport Screenings May Put Privacy at Risk

It’s a Christmas motif almost as ubiquitous as Christmas trees or sleigh bells—families and individuals hastily making their way through airports, balancing presents, bags, and children, excited to make their way home to spend Christmas with their loved ones.

They’re concerned with their flight status, the weather in their destination, their luggage making it to the destination, or the likelihood they will get selected for a random TSA pat-down and any other number of travel-related factors.

But in 2018, there may be another worry to add to that already long list of travel woes.

At some point next year, the Department Homeland Security is hoping to implement mandatory facial scans for all people—American citizens included—who are flying internationally. In fact, they’ve already rolled out this invasive practice in a handful of airports this holiday season.

This new invasion of Americans’ privacy caught the attention of Sen. Ed Markey, D-Mass., whose own Logan International Airport was one of the airports selected for the rollout. We wrote a letter together to get more information from Homeland Security about this program.

There are a number of issues with this program, including that Homeland Security hasn’t instituted a way to let travelers know that they will be subjected to this scan before they fly.

But more importantly there is no evidence to show that this facial scan actually works. Homeland Security is hoping to use this technology accurately 96 percent of the time. But even at that rate, 1 of 25 travelers would still be misidentified and improperly flagged by Homeland Security.

Additional evidence shows gender and ethnicity increase the likelihood of being improperly flagged.

But perhaps the biggest concern is how the government will use this accumulated data and whether or not Homeland Security is even allowed to collect it in the first place.

As of now, the information is supposedly only shared with the National Institute of Standards and Technology to check for fraud, and then deleted from the Homeland Security database after 14 days.

But in our examination of the program, we have not seen satisfactory safeguards that protect this information from being accessed by third-party groups or that show these protocols are actually being followed.

The Department of Homeland Security is ushering in this program in an attempt to fulfill a congressional mandate that says a biometric exit program needs to be in place for international travelers. However, they have gone beyond this directive as the mandate passed by Congress did not allow for facial scans to be used on American citizens.

For the Department of Homeland Security to do this stands in direct conflict with the Constitution and its Fourth Amendment protection of privacy.

Until the Department of Homeland Security is willing to address these problems and provide myself, Markey, and Congress sufficient evidence to prove the program falls within the constraints of its congressional mandate, Homeland Security should provide American citizens with a timely Christmas present—protecting their rights by not only stopping this program’s expansion, but stopping it’s use entirely.

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We Risk Returning to Pre-9/11 Status Quo if We Don’t Maintain Section 702

Section 702 of the Foreign Intelligence Surveillance Act (FISA), which has proved vital for keeping the U.S. safe from terrorists, is set to expire at the end of this year.

Section 702 has been described as the “crown jewel” of U.S. intelligence for its intelligence gathering on foreign actors, most notably terrorists. In a recent Washington Post op-ed, Rachel Brand, the no. 3 official in the Trump Justice Department (and a member of President Barack Obama’s Privacy and Civil Liberties Oversight Board), argues that 702 “has prevented multiple terrorist attacks, including an al-Qaeda plot to detonate explosives in the New York subway.” Indeed, the National Security Agency has identified over a dozen instances where 702 was essential to foiling terrorist plots and conspiracies.

Section 702 is not a bulk collection of data, or a way for the government to spy on Americans Before any data can be a collected, a specific target that meets specific national security criteria is required. Furthermore, that target must be located outside the U.S. and there must be a reasonable expectation that the target is not a U.S. person. If an American emails with the foreign target, the government can collect those emails but can go no further into Americans’ emails.

So after collecting this foreign intelligence, of course the U.S. government uses it to keep Americans safe. One way the information is used is by sharing information from these foreign targets with the FBI when the intelligence relates to a domestic security investigation. While the FBI has historically ended up making queries of 702 collected information from fewer than 5 percent of all 702 targets, this information is essential to keeping the U.S. homeland safe.

It is for this reason that intelligence and security leaders from both parties and multiple administrations have implored Congress to maintain this program as it is.

Unfortunately some in Congress are considering changes that would rebuild the walls between our intelligence agencies that existed before and were to blame for 9/11. These proposals would limit the FBI’s ability to use foreign intelligence in their investigations. Intelligence officials have warned that these new limits, such as requiring a warrant before the FBI can query 702 data, would prevent different parts of the intelligence community from sharing with others.

As just described, this is intelligence lawfully gathered from foreign intelligence targets. The American judiciary has repeatedly agreed that 702 collected information is legally collected and retained.  There is no reason to add a warrant requirement or other barriers. We don’t make the FBI get a warrant just to access the information that it already has on hand in other cases. Of course we should allow the FBI to query this information to help put together the dots of a domestic terror plot.

Section 702 is not only effective and legal, but it is also subject to rigorous oversight by all branches of government. There is the FISA court, the Privacy and Civil Liberties Oversight Board, the Congressional intelligence committees, and the intelligence organizations themselves that all play a role in ensuring these programs are operated correctly.

We must not return to a pre-9/11 mindset where we hide information from ourselves. Congress should reauthorize 702 in its current form.

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