The Transportation Security Administration is planning to test a face recognition system that could be used on all domestic U.S. fliers, according to a document the agency released today. That would represent a significant expansion of face recognition in daily life.

In the test, which will occur at McCarran airport in Las Vegas, passengers entering the TSA security area will be photographed and a face recognition algorithm applied in an attempt to tell whether they match the photograph on their IDs. The system adds face recognition to a technology that the TSA has been working on for years called Credential Authentication Technology, which scans a passenger’s driver’s license or other ID document and attempts to automatically determine whether it is authentic.

If the TSA decides that the system works well, we can assume the agency will use it to replace human document checkers throughout the domestic aviation system. This program is part of the TSA’s sweeping vision to deploy face surveillance at the nation’s airports, and comes on the heels of a similar deployment by CBP at the gates of departing international flights. If widely deployed, the TSA's program would (as we said of the CBP program) socialize people to accept face recognition and normalize the technology, inevitably be subject to mission creep, and expose people to the judgments of unreliable and biased algorithms.

For purposes of this test, the TSA says it will only run the system on passengers who volunteer to participate. “The passenger’s facial image, along with certain biographic information from the passenger’s identity document, will be collected by TSA and retained for subsequent qualitative and quantitative analysis” by DHS technical experts. Names and identification numbers will be obfuscated before the data is transferred for analysis, the agency says, and the data will be deleted within 180 days.

But the real question is what data will be collected and how will it be handled if this technology moves beyond tests? Will passengers be able to opt out? Will the agency want to collect and store passengers’ photographs to improve the training of their face recognition algorithms? Will passengers’ photos be run against photographic watch lists, exposing every passenger to the risk of being misidentified as a serious terrorist or other criminal every time they fly?

And what are the implications of introducing a technology for the automated checking of IDs? Like many airport security measures, such technology may very well expand beyond the airport and into daily life. When ID checks can be done by machines that are much cheaper and easier to deploy than human guards, will we find ourselves being subject to ever-more-frequent checks? When ID checks become cheap and easily scalable they will inevitably be over-used, as we have seen happen with other surveillance technologies.

Finally, as I have explained in depth before, one of the biggest problems with this use of face recognition is that it represents an ever-growing investment by the TSA in identity-based security — security based on knowing more and more information about people and trying to use that information to assess their “risk to aviation.” The TSA should instead be focused on making sure that nobody — no matter who they are — can bring guns or explosives onto aircraft. Face recognition is an investment that is bad for security and that is likely to have bad side effects on our society to boot.

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

This piece was originally published in Just Security. 

For more than three years, the American Civil Liberties Union and the Knight First Amendment Institute at Columbia University have been litigating a series of Freedom of Information Act requests relating to “prepublication review.” Under this far-reaching censorship system, millions of current and former government employees, contractors, and even interns must submit their manuscripts for official review prior to publication. Virtually everyone seems to agree that the system is broken.

The thousands of documents that have been released in response to our FOIA litigation paint a picture of a system that is fractured and incoherent. Because there is no executive- branch–wide policy on the review process, each agency has its own. Agency regimes comprise a tangle of regulations, policies, and nondisclosure agreements. Submission and review standards, review timelines, and appeals processes are vague and confusing.

Today, we’re releasing an interactive chart that reflects our effort to make sense of this system. We’re hoping that the chart will enable users to study and compare the key features of the prepublication review regimes of the seventeen intelligence agencies, and of three of the standard agreements those agencies typically require individuals to sign as a condition of access to classified information. The chart also includes links to annotated versions of the underlying regulations, policies, and agreements. Many of these were not available publicly until we sued for their release.

While we hope the chart goes some way towards clarifying the system, we can’t claim to have it all figured out. (In fact, the incoherence of the system is one of the things we pointed to in arguing, in a complaint filed a few months ago, that the system is unconstitutional.)

Ramya Krishnan, Staff Attorney, Knight First Amendment Institute at Columbia University

In March 2011, a tactical team of guards at a state prison in Lincoln, Illinois gathered 200 women and ushered them into a gymnasium, where they were brought in small groups into a separate room nearby. Inside that room, they were told to strip naked in plain view of other guards, cadets, and civilians, without any explanation. Women on their periods were ordered to remove their tampons and sanitary pads. One-by-one, each woman was ordered to lift her breasts, cough and squat, and display her vaginal and anal cavities. Those who refused were threatened with punishment. In total, the ordeal lasted nearly four hours.

When used by combatants in war and armed conflict, these tactics are a strategy used to assert control and instill fear in communities. In this case, the mass strip search was purportedly carried out as part of a cadet training exercise, meaning that the women were subjected to this humiliating violation without even the pretext of an immediate safety need.

Being forced to strip naked or expose oneself to others would traumatize anyone. But for most incarcerated women, that trauma can be even more severe because so many are survivors of and witnesses to abuse and violence. In Illinois alone, one report found that that 75% of women in prison had histories of sexual abuse and 98% had histories of physical abuse. Studies show that when survivors are revictimized, the harm to their emotional and mental health is greater than that to others. Practices like these perpetuate the devaluation and compound trauma that most women behind bars are already dealing with.

Nevertheless, strip and cavity searches like those endured by the women in Lincoln are not uncommon. In 2016, thirty-one women—including 14 transgender women—in immigration detention in Santa Ana filed a federal complaint challenging the use of strip searches that involved a “labia lift.” Earlier this year, the San Francisco Public Defender’s Office submitted a complaint to the county sheriff alleging that women in County Jail No. 2 were similarly made to strip in view of others and directed to expose their genitals. And only a few months later, Los Angeles County entered into a $53 million settlement to resolve a 2010 lawsuit brought by women subjected to strip searches that also involved a “labia lift,” after a federal court ruled that the practice violated the women’s constitutional rights.  

In the wake of being subjected to the strip search in Lincoln, the women filed suit in 2014 to end the practice, alleging it violated the Eighth Amendment’s prohibition against cruel and unusual punishment as well as their Fourth Amendment right to privacy. While the Supreme Court has held that strip searches and visual body cavity searches by prison officials are permissible, they can only be used if they are reasonably related to some legitimate penological interest, such as preventing contraband from being smuggled in the prison or protecting people’s safety.

In this case, the district court threw out the women’s Fourth Amendment claim, and a jury later ruled against their Eighth Amendment claim. In a divided 2-1 decision, an appellate court affirmed dismissal of the Fourth Amendment claim on the grounds that corrections officials conducted only a “visual inspection, not a physical intrusion,” and visual searches are permitted. The dissenting judge pointed out that, “it seems odd ... to make the question of whether a prisoner has a reasonable expectation of privacy under the Fourth Amendment in the integrity of his or her intimate body cavities dependent on who it is that does the probing or penetrating.”

But the women aren’t dropping their case. Last week, they filed a brief asking for a review of the appeals court’s decision by a larger panel of judges. The ACLU and the MacArthur Justice Center, along with partner organizations including the Women’s Prison Association, Just Detention International, Uptown People’s Law Center, as well as scholars of gender-based violence, have submitted an amicus brief in support of the women. The brief argues that, in addition to being protected against cruel and unusual punishment, people’s right to be free of government overreach doesn’t end at a prison’s gates. Preserving the right to privacy enshrined in the Fourth Amendment means placing limits on government power. Neither incarceration nor the operational needs of any prison should override those limits.

Anjana Samant, Senior Staff Attorney, Women’s Rights Project
& Sarah Andrea Esteban, Paralegal, Women's Rights Project