While exit controls do not exist when leaving U.S. airports, they are coming…in some form. But the Department of Homeland Security’s experimental new Biometric Exit Program may be unconstitutional in its current form.
Mandated by Congress in 1996 and re-affirmed after the 09/11 attacks, the U.S. wants a better system in which to track those who overstay their visas or attempt to leave the USA with false documents. The problem is U.S. airports are simply not set up to do this. Unlike airports in much of the world, the U.S. imposes no exit controls and terminals are often not distinguished by international and domestic travel.
Consequently, the investment required to more closely monitors who leaves the U.S.A. is much more complex than just starting to stamp passports on the way out.
In June, the Department of Homeland Security (DHS) began subjecting passengers to facial recognition scans at five airports. The $1BN pilot program will expand nationwide if successful.
While DHS claims it programs catches visa overstays and prevents identity fraud, many are worried about the bills unconstitutional ramifications. The Georgetown University Law Center has issued a report arguing why the new test program is unlawful. You can read the report in its entirety via the link below.
> Read More: “Not Ready for Takeoff: Face Scans at Airport Departure Gates”
Put simply:
The DHS simply doesn’t have the authority to force anyone to hand over their biometric data. Congress has passed legislation permitting DHS to collect face data from foreign nationals, “but no law directly authorizes DHS to collect the biometrics of Americans at the border,” the report reads.
Additionally, the report argues that mandating face scans is such a huge expansion of the DHS’s authority it should have been scrutinized during a public comment period before implementation, as required by federal law.
That’s not all. The whole program may be fatally flawed. The purpose of the program is to catch people exiting the USA with a false ID. But the DHS is measuring program success “based on how often the system accepts travelers using their true credentials.” The Georgetown reports likens this to “hiring a bouncer without knowing how well he can spot fake ID”.
And even the scans themselves are of questionable authenticity. Per the New York Times:
The report’s authors examined dozens of Department of Homeland Security documents and raised questions about the accuracy of facial recognition scans. They said the technology had high error rates and were subject to bias, because the scans often fail to properly identify women and African-Americans.
Rather difficult to catch someone who doesn’t even have a photo on file, isn’t it?
CONCLUSION
I’m not necessarily opposed to exit checks at U.S. airports, but I do want a system that protects the civil liberties of all travelers, especially U.S. citizens.
Laura Moy, who helped author the Georgetown report, says it best–
They can change their minds on how they use this data at any time, because they haven’t put policies in place that govern how it’s supposed to be used. This invasive system needs more transparency, and homeland security officials need to address the legal and privacy concerns about this system, before they move forward.
I concur.
I have often wondered why the US seems to be still incapable of doing proper exit checks and offer sterile transits. It makes the whole airport experience feel clumsy as compared to anywhere else in the world, even more so considering the paranoia and bullying one has to deal with upon entry.
Is there value in catching people who have overstayed their visa upon exiting the country? They are already leaving!
I suppose the information can be tracked and used for future arrivals of the same person…
Of course! The value is enforcing existing immigration law. Millions of people — often from visa-waiver countries, but also people who get a single tourist visa — come to the U.S., overstay their visa, work for year(s) or decade(s) without papers, and then they can leave (and come back again) with zero consequences. How is that fair to people who follow the law to live and work in the USA? In Europe, if you overstay a Schengen tourist visa (i.e. 91 days), you risk a five-year ban or several thousand euro fine. The government should know when people are entering and exiting the country. And, as I argue below, the easiest way to do this is without biometric e-gates, which are in use all over Europe and the UAE.
Sorry, is *with* biometric e-gates (typo)
I believe this is constitutional — it’s just a matter of some creative accounting as to how the data is stored.
Moreover, first, we should have exit immigration — it’s crazy that people can come to the U.S. overstay a visa, and then leave with no consequence. If you overstay in the Schengen area, it’s noted at exit, and you are fined and/or banned for a period of years. No, this isn’t me being xenophobic, but simply making the point that the rules were not meant to be broken. If making an immigration grand bargain, I’d happily trade a path to citizenship for existing undocumented DACA children for real serious exit immigration checks, as in most other countries.
Second, this could be a half-step to using automatic e-gates for immigration (entry and exit), which would be great. Entering Europe on my EU passport is amazing — 10 seconds at an e-gate at Lisboa, Heathrow, Rome, Frankfurt, wherever — no human being with dumb questions and small talk — and I’m in! Feels like Star Trek! As a U.S.-Italian national using EU e-gates, it’s literally faster for me to enter the “foreign” UK or Portugal or Germany than it is to enter my “own country” at JFK. No application needed, no fee, no interview — everyone from the EU/EEA/EFTA gets to use the e-gates, and it’s both safer (i.e. biometric data checked) and faster (i.e. no human being or no dumb Global Entry paper slip + human being) than all other passport control technology.
Instead of new physical infrastructure, can they simply not upgrade the TSA BP scanners to collect this information?