Markey, Lee Question Legality of DHS Airport Biometric Scans on US Citizens

Privacy concerns about the growing use of biometric scanning in U.S. international airports prompted Sens. Ed Markey, D-Mass., and Mike Lee, R-Utah, to question Department of Homeland Security Secretary Kirstjen Nielsen about the program’s legal basis in a letter sent Thursday. The letter asked DHS to stop expanding the program, now used in nine U.S. international airports, until the agency shows Congress “its explicit statutory authority” to use the technology on U.S. citizens. A Georgetown Law Center on Privacy and Technology report released Thursday said “neither Congress nor DHS has ever justified the need for the program,” which may violate federal law because Congress hasn't explicitly authorized border collection of biometrics on Americans using facial recognition technology. DHS hasn't been transparent about the program, nor has it conducted the required rulemaking, said Harrison Rudolph, associate-Georgetown Law Center on Privacy and Technology. "Without enforceable rules, DHS' airport face scanning program may seriously threaten Americans' privacy. That is unacceptable," Rudolph said. DHS told us U.S. Customs and Border Protection, which operates the scanners, “takes its privacy obligations seriously,” and makes clear that U.S. citizens are “not required” to permit the scans. Signage at the scanning sites explain that alternative ID procedures are available. Anyone who’s concerned and doesn’t want to be scanned “need only let a CBP officer or airline gate agent know and their documents will be reviewed to ensure they are the true bearer of the passport that is being presented,” a CBP official said, saying the agency is working on procedures that are “least disruptive for the travel industry while also effectively enhancing border security.” Using facial recognition at airports is an even broader privacy risk due to the lack of regulation and potential for rapid expansion of the technology, said Jeramie Scott, director, Electronic Privacy Information Center's domestic surveillance project, which sued CPB for details on the scanning program and urges it be suspended until privacy risks are better understood.