ACLU sues for records on facial recognition use at airports, border

The organization argues the public has a right to know how the US government is using the surveillance technology.

Alfred Ng Senior Reporter / CNET News
Alfred Ng was a senior reporter for CNET News. He was raised in Brooklyn and previously worked on the New York Daily News's social media and breaking news teams.
Alfred Ng
3 min read

Facial recognition scanners at an airport in Chicago 

Brian Cassella/Chicago Tribune/Tribune News Service via Getty Images

The American Civil Liberties Union is suing the Department of Homeland Security, as well as Customs and Border Protection, the Transportation Security Administration, and Immigrations and Customs Enforcement after the agencies failed to provide public records on how they're using facial recognition at airports and US borders. 

The lawsuit, filed on Thursday, argues that the public has a right to know how these US agencies have been using facial recognition, citing concerns about surveillance and privacy

"Over the past few years, CBP and the TSA have significantly expanded their use of face surveillance technology at airports and the border, raising profound civil liberties concerns," the ACLU's lawsuit stated.

The TSA and CBP declined to comment, while the other agencies didn't respond to a request for comment.  

An ICE spokeswoman said the agency is unable to comment on pending litigation but said that its facial recognition use was for investigative purposes only. 

"ICE does not routinely use facial recognition technology for civil immigration enforcement," ICE said in a statement. "ICE's use of facial recognition technology is primarily used by Homeland Security Investigations (HSI) special agents investigating child exploitation, human trafficking and other cases that HSI special agents investigate."

The ACLU filed a public records request to the agencies on Jan. 9, and hadn't received any records by the request's deadline. The request asked for documents on facial recognition use, along with government contracts with airlines and airports, policies surrounding the data collected, and analysis on how effective the technology actually was. 

Public records request laws give agencies 30 days to respond, but the DHS, CBP, TSA and ICE didn't answer in that time, the ACLU said in its lawsuit. 

"The public has a right to know when, where, and how the government is using face recognition, and what safeguards, if any, are in place to protect our rights," the ACLU National Security Project's staff attorney Ashley Gorski said in a statement. "This unregulated surveillance technology threatens to fundamentally alter our free society and is in urgent need of democratic oversight."

Watch this: Clearview AI's facial recognition goes creepier than most surveillance tech

Since 2017, the DHS has been using facial recognition at airports to keep track of travelers when they enter and exit the country, using facial recognition on more than 20 million people. 

The program is in at least 17 airports, and CBP said it wants to scan 97% of outbound travelers by 2021. In December, CBP announced it was dropping its plans to require US citizens to go through facial recognition for international travel

The DHS has used facial recognition beyond airports, testing technology from companies like Clearview AI, according to BuzzFeed News. The ACLU has sued the agency for documents pertaining to facial recognition provided by Amazon.  

A report from BuzzFeed News also found that CBP had been rushing its facial recognition rollout at airports, without setting up any limits or safeguards. In May, an official of the agency said it didn't have data to address racial bias with facial recognition at airports.

Some lawmakers worry that facial recognition poses a threat to civil liberties and free speech, and have proposed legislation to limit the technology's use. There are still no federal laws on the surveillance technology, however, and government agencies like ICE and CBP have been adopting facial recognition without any limits. 

The public is also mostly unaware of how this technology is being used, or how the data collected from their images is being protected. The ACLU said it is suing so it can then publish that information. 

The public "lacks essential information about how facial recognition technology is being implemented at airports and the border; how photographs or 'face prints' obtained by CBP or TSA will be accessed by airports, airlines, and commercial vendors, as well as federal, state, and local authorities; and how ineffective, discriminatory, and costly this facial recognition technology may be," the lawsuit states. 
You can view the lawsuit here: