A Right to Privacy: Biometric Reading, Data Sharing, and Immigration Enforcement

by Brenner Beard

What you can do:

  • Contact your local Representatives and implore them to repeal the Save America’s Ports Act
  • Donate to the Amnesty International Campaign to have Edward Snowden pardoned 
  • Supporting the ACLU: they’re the organization facilitating the lawsuits against the Department of Homeland Security.

In a year riddled with abnormalities, the US-Canadian Border has been no exception. Even as a global pandemic has shut it down for non-essential travel, U.S. Customs and Border Enforcement (CBP) has taken major steps to increase border security and has used the COVID-19 health crisis as a means to justify some questionable procedures. One such example was the implementation of a sweeping biometric reading program misleadingly coined “Simplified Arrival”. In essence, CBP has made biometric data collection and facial recognition software an essential part of entry and exit procedures for all U.S and non-U.S. citizens. On the other hand, the Canadian agency (Immigration, Refugees, and Citizenship Canada) has not yet reached the extreme of their American counterparts, but they do require the relinquishment of biometric data for all visitor visas, work permits, and naturalization applications and have since been expanding this [7].  While the U.S. agency totes their “Simplified Arrival” process as a harmless program meant to “streamline passport checks” in a “germ-free” manner and confirm identity “with more accuracy, security, and efficiency than ever before” [1], it begs the question; at what cost? Does the need for security on our international borders triumph civil liberties or any plea to a so-called “right to privacy”? Is facial recognition software even an ethically sound method of enforcement? Where does all this data go and how is it used? All of these are questions that must be asked as our country and our northern neighbor pass intrusive legislation, implement facial recognition software, and continuously ramp up security measures on the border.

This past February , the ramifications of biometric reading on our northern border became  apparent. On February 28th, U.S Customs and Border Enforcement (CBP) in Toronto announced that they had apprehended two people attempting to enter the U.S illegally through the successful implementation of facial recognition software [2]. The press release stressed that the present pictures of travelers run through the AI software are only held for 12 hours in the case of U.S citizens. As for foreign nationals, the photos are stored indefinitely in a Department of Homeland Security database. The CBP also emphasized that including this particular instance, over 400 arrests had been successfully made via facial recognition AI [2]. However,  the number of arrests is dwarfed by the number of innocent travelers having to be subjected to this invasion of privacy. Since the implementation of biometric software at U.S. ports of entry, over 62 million immigrants and travelers have been photographed and in the cases of non-U.S. citizens; permanently recorded in the data records of the Department of Homeland Security (DHS) and made accessible to just about any enterprising federal enforcement agency [2].

Admittedly the CBP did attempt to preserve some degree of privacy discretion, warranted under the “right to privacy” often said to be alluded to in the 4th amendment, by establishing a 12-hour maximum time frame in which this data can be stored [1]. However, for foreign nationals, there is not even a veiled attempt to maintain any sense of privacy protection. Similarly, Canadian officials freely store photos and fingerprints of all foreigners entering their country indefinitely and indiscriminately. Naturally, non-citizens aren’t afforded protections in country-specific constitutions however, the collection and storage of biometrics, independent of a traveler’s nationality, is an egregious violation of international agreements as well. The United Nations Declaration of Human Rights (an agreement that both the U.S. and Canada voted in favor of) specifically states, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence” [3]. In that vein, the indefinite retention of biological information by a government certainly fits the bill of “arbitrary interference”. As innocent as they make it seem, CBP’s and IRCC’s use of biometric reading on our northern border is a wholesale robbery of UN-recognized human rights from travelers and immigrants alike.

Beyond mere questions of privacy, there is also an ethical dimension to the use of facial recognition AI. Even as over 60 industry groups are lobbying for enhanced AI implementation on the border [4], The New York Times ran a June article outlining the inherent bias of facial recognition software. In the article, Google executive Timnit Gebru is quoted as saying, “the misuse and lack of transparency” in the current use of automated biometric reading software is “dangerous” [4]. She even conceded that Google had consistently found “very high disparities in error” in the accurate identification of both light-skinned and darker-skinned people of African and Middle Eastern descent [4]. In other words, current AI facial recognition software has a pre-programmed bias when it comes to recognizing people of non-Caucasian ethnic groups.

Within the context of the U.S.-Canadian Border security, this bias is a distinct problem as the demographics of those transiting the border are heavily skewed towards persons of color and LATINX groups [6].  For example, since the 80s India, Brazil and other South American countries have been the major contributors to immigration in Canada [6] [8].  With these demographics in mind, the potential for any added technological bias is something that should be inexcusable to both U.S. and Canadian authorities given the level of racially charged scrutiny each government has already fallen under. Widely reported on both sides of the border are the continuing discriminatory policing practices of law enforcement, as in the case of George Floyd in the U.S. and the death of D’Andre Campbell at the hands of police in Ontario [9]. Similar critiques have also been lobbed at the border agencies themselves. In March, three Black U.S. Border Patrol officers at the Port Huron border facility filed a federal lawsuit against the DHS alleging “CBP routinely targets and harasses Black travelers at the Blue Water Bridge ” between the U.S. and Ontario [9].  This is no isolated incident either. In the past, over six more similar lawsuits have been filed in many different states including northern border facilities in Maine, Ohio, Washington, and Montana [9]. The  evident racial bias in the implementation of AI Facial Recognition and biometric reading software in addition to the discrimination plagued border authorities is a moral failure by both the U.S. and Canada.

 What’s possibly even more concerning about Project Simplified Arrival and Canada’s similar growing reliance on these invasive tactics is how it’s indicative of the scale at which the conflict between security and liberty has been playing out on our borders since 9/11 and grown in the midst of the pandemic. Biometric data and AI facial recognition are just one more step in a disturbing pattern of privacy infringement justified in the name of border protection.  Just this past January, President Donald Trump signed the Securing America’s Ports Act, a law that mandates the searching of all incoming vehicles to the United States [10]. This would be a search increase from roughly 15% of vehicles to 100% regardless of suspicion, an action which the San Diego Union-Tribune writes is indicative of “an attention to cargo security ramping up after 9/11” [10]. What happened to any lawful protection against unwarranted searches and seizures promised both in the Constitution and the UDHR? Is the necessity for security so great that these liberties can be sidestepped on national peripheral areas?

In addition to the still horrifying memories of 9/11 being misappropriated to validate legislation like the Securing America’s Ports Act, border officials on both sides have found a new justification for the increasing degradation of privacy rights in the COVID-19 Pandemic. As a British Columbia Health Ministry spokesperson recently said, “diseases know no boundaries” [11]. With the adoption of this trans-border attitude, cooperation between the U.S., Canada, and the world at large has increased immensely all in the name of containing the Coronavirus. The relaxation of data privacy laws on both sides of the border has fueled things such as the OPEN COVID Pledge, an international agreement signed by some of the world’s largest data collectors including Facebook and Amazon, which encourages holders of secure intellectual property to share it with governments and other agencies to track COVID-19 accurately [12]. While federal authorities in Canada have attempted to save face, claiming that the “flexibility in applying privacy laws will be temporary and strictly limited to efforts that address the Covid-19 pandemic” [12], the U.S has made no such statement. Just as PATRIOT Act espionage and NSA surveillance moved from temporary to the “norm” in the wake of 9/11, we may see the expanded implementation of data sharing agreements and relaxed privacy laws migrate from short-term COVID-19 policies to permanent fixtures in border security. Combined with the increased use of AI facial recognition software and biometric data collection, the state of privacy on our northern border grows ever more bleak.

The United States Custom and Border Protection Agency’s new “Project Simplified Arrival” may have been the entry point into this conversation, but the broader issue of privacy degradation on the border is extremely wide and encompasses enhanced surveillance strategies, international agreements, legislation, and pure questions of morality itself. It transcends any imaginary line between the U.S and Canada and can’t be solved unless the people on either side of the 49th parallel step up and say something. As the evolving use of biometric reading by U.S. and Canadian border authorities and increasingly relaxed privacy laws illustrate; we are rapidly marching towards a world where the notion of privacy is an illusion. Unless people begin to ask the right questions, the fate of privacy on our border is sealed.

Works Cited:

[1] https://www.cbp.gov/newsroom/national-media-release/cbp-makes-2-apprehensions-through-facial-biometrics-canada

[2] https://biometrics.cbp.gov/

[3] https://www.un.org/en/about-us/universal-declaration-of-human-rights

[4] https://www.nytimes.com/2020/06/09/technology/facial-recognition-software.html

[5] file:///Users/brennerbeard/Zotero/storage/8GP954J6/advanced-biometric-border-systems-could-secure-u-s-canada-border-deployed-in-dominica-iran.html

[6] https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/details/page.cfm?Lang=E&Geo1=PR&Code1=01&Geo2=&Code2=&SearchText=Canada&SearchType=Begins&SearchPR=01&B1=All&TABID=1&type=0

[7] file:///Users/brennerbeard/Zotero/storage/SK6FYDNU/canada-releases-new-details-on-how-traveller-information-is-collected-at-the-border-0815611.html

[8] file:///Users/brennerbeard/Zotero/storage/FYUP4J68/article-canadas-cops-should-study-us-the-failings-of-policing-and-resolve.html

[9] https://www.freep.com/story/news/local/michigan/detroit/2021/04/02/cbp-officers-blow-whistle-racial-profiling-daily-thing-border/4645648001/

[10] https://www.sandiegouniontribune.com/news/border-baja-california/story/2021-02-16/dhs-xray-border

[11] https://www.aljazeera.com/news/2020/3/10/diseases-know-no-borders-cooperation-key-in-covid-19-response

[12] https://blog.scienceborealis.ca/data-sharing-in-the-time-of-covid-19/

[13] file:///Users/brennerbeard/Zotero/storage/UX8IBPA6/ice-chief-rips-ny-green-light-canada.html