Starting in August, the U.S. Customs and Border Protection (CBP) reportedly will begin a pilot program at the Anzalduas port of entry in Texas using face recognition technology to capture facial images of occupants in moving vehicles as they travel to and from Mexico. Facial recognition technology is already being tested at a number of international airports, including Washington Dulles, New York J.F.K., Miami, and Los Angeles.

CBP has been working to develop more technically advanced, efficient strategies for recording information on individuals entering and exiting the U.S. since 2012.

After 9-11, Congress passed legislation to use biometric technology to screen non-U.S. citizens entering and exiting the country. Entry programs, particularly at airports, posed little difficulty as all entering passengers are funneled through CBP. Exit programs were much more difficult, because individuals depart airports from multiple gates – providing no central location for collecting biometrics and any proposed system would have caused immense delays in airport processes.

By 2015, CBP’s Field Operations, in conjunction with the DHS Science and Technology Directorate, had tested facial recognition software and, in 2016, conducted a pilot program at the Atlanta airport. With a small camera, CBP photographed every passenger, not just non-U.S. citizens, during the plane boarding process. Those photos were then matched in real time against a gallery of photos collected for each individual at the time of check-in.

By 2017, some airlines in partnership with CBP were working toward boarding passengers with just facial recognition technology – without boarding passes. In the future, CBP hopes to be using biometric technology nationwide.

Privacy groups and two U.S. Senators have questions about the legality of these biometrics programs. Because those being screened and photographed include U.S. citizens, Senators Edward Markey (D-Mass.) and Mike Lee (R- Utah), in a letter to DHS Secretary Kirstjen Nielsen, noted various objections. They pointed out that Congress never authorized the use of biometric screening for any purpose on U.S. citizens, that the DHS had no authority to collect and store (even for just 14 days) the data of U.S. citizens, and that there was a four-percent error rate (meaning, one in 25 individuals might be misidentified). Studies, they noted, indicated that error rates varied depending upon gender and race. Although the letter was delivered in December 2017 and questioned the way biometrics were being captured at U.S. international airports, the same objections undoubtedly would apply to the pilot program at the Mexican border.

Jackson Lewis will continue to monitor and provide updates on this and other legal developments.