Emergency powers, the border wall and lessons from Germany
Will Trump’s biometric entry-exit system be as controversial as his travel ban?
International ports in the U.S. are developing a biometric entry-exit system to verify travelers.
I predicted the travel ban when Trump was still a candidate for the presidency, and I anticipated the religious discrimination challenge. I even provided a blueprint for dealing with that argument which turned out to be prescient too.
I did not anticipate, however, that the federal courts would flout precedent to block the travel ban. According to Eric Posner, a professor at the University of Chicago Law School, the courts created a "Trump exception" to settled law on presidential powers.
I wonder what the reaction is going to be to Trump's biometric entry-exit system.
Unlike the travel ban, which just applied to aliens seeking admission to the United States, Trump's biometric entry-exit tracking system will apply also to American citizens. The facial recognition technology that the system uses to identify travelers leaving the country will be used to identify American citizens too, unless they request an alternative means of verifying their identities.
And this time, the federal courts would not have to base their decisions on extemporaneous campaign statements and late-night tweets.
The commission advised against exempting American citizens.
Biometrics are physical or behavioral characteristics of a person that can be measured and used for identification, such as fingerprint patterns.
This entry-exit system was not a new idea. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act called for the creation of an automated system to record arrivals and departures at all air, sea, and land ports of entry. Moreover, Congress has passed other laws since then that also require biometric entry-exit screening.
The failure to establish the mandated entry-exit systems is due primarily to the fact that there are too many people crossing the border to make biometric screening feasible at every port of entry. On a typical day in fiscal 2017, Customs and Border Protection's (CBP) processed the entries of 1,088,300 passengers and pedestrians.
No one knows how many exits there were.
But Trump is making progress at international airports.
On June 21, CBP announced a biometric entry-exit system using facial recognition technology at the Orlando International Airport, which is Florida's busiest airport. CBP is testing this system at 13 major airports across the United States.
Facial biometric capture devices (cameras) can be installed at departure gates without having to alter airport physical infrastructure. The facial recognition verification process takes less than two seconds. It has a 99 percent matching rate. And it seamlessly integrates into the airport boarding process.
From a privacy perspective, it is the most dangerous biometric identifier because it has great potential for expansion and misuse. For instance, you can subject thousands of people an hour to facial recognition while they are walking down the sidewalk - without their knowledge. Facial recognition databases could be plugged into every surveillance camera in America, producing a giant infrastructure for government surveillance and control.
Facial recognition technology is not reliable. People's faces don't stay the same. Even changes in expression can render the comparisons inaccurate, which is why Americans are not allowed to smile in passport photos. And many people have faces that are similar in appearance.
And studies show that facial recognition suffers from higher error rates when matching the faces of African Americans, which raises the prospect of yet another racial injustice in our society.
The ACLU has raised legitimate concerns about the reliability of biometric facial technology, but the algorithms used in facial recognition technology are improving. An "algorithm" is the formula that identifies the unique biometric features in a face and then compares those points to corresponding areas in previously collected biometrics.
It is possible to verify people's identities with facial recognition much more effectively now than it was even two years ago, and the technology continues to improve.
The privacy concerns the ACLU has raised are legitimate too. In fact, CBP has met with representatives from several privacy advocacy groups to find ways to protect privacy rights.
Although Trump's executive order just expedites the implementation of an entry-exit system that has been mandated by Congress, that doesn't mean that he can implement it with unreliable biometric technology or without due regard to the privacy rights of American citizens.
I hope that Trump can work these problems out and that he prevails in court this time too. We need the recommended biometric entry-exit system.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.