The Department of Homeland Security has a scary vision for expanding face recognition surveillance into our everyday lives, threatening a dystopian future in which the technology is used throughout our public spaces to scrutinize our identity, check us against watchlists, record our movements, and more. Work on building the infrastructure for this pervasive monitoring has already started, with U.S. Customs and Border Protection currently operating a face recognition system at the gates of departing international flights.  

There is ample reason to be alarmed. Face recognition technology is riddled with bias and inaccuracies, and CBP’s program will likely result in harms ranging from missed flights to lengthy interrogations, or worse. And more broadly, face recognition technology threatens to supercharge Homeland Security’s abusive practices, which have included detaining and interrogating journalists reporting on border conditions, targeting travelers based on national origin, and terrorizing immigrant communities.

Here in the United States, DHS has already laid out — and begun implementing — a very clear plan to expand face surveillance. If we allow the agency to move forward with its plan, there are all too many reasons to think that will lead our society down a dangerous path.

Here is what that pathway looks like, in five steps:

1. Expanding CBP’s existing face recognition system to TSA checkpoints nationwide

CBP’s current program, called the Traveler Verification Service (TVS), is limited to international departure gates at a growing number of U.S. airports. Departing international passengers pose for a photograph at the aircraft gate. The photo is then compared to a pre-assembled gallery, stored in the cloud, of government mug shots (mostly passport and visa photos) of all the passengers registered for that flight. Face recognition is used to make sure the photo of the person posing matches someone in the gallery.

But that’s just the beginning. CBP has started a “demonstration program” aimed at integrating its TVS face recognition program into TSA security checkpoints for passengers who have tickets for “specified international flights.” The TSA is also looking at using CBP’s infrastructure to roll out face recognition for PreCheck travelers. Extending the TVS program beyond aircraft gates to TSA checkpoints and elsewhere would mean building an infrastructure of cameras and devices that could then be scaled up, making it much easier for face scanning to expand.

2. Putting all fliers through the face tracking system

Once CBP’s infrastructure is in place at TSA checkpoints and elsewhere, the government has plans to start tracking the faces of more and more of the over two million passengers who pass through the TSA’s security checkpoints every day — and eventually all. A strategic roadmap that the TSA issued in 2018 directs the agency to move beyond PreCheck passengers and push the general traveling public into face recognition systems. The goal is for these systems to be integrated with other parts of DHS as well as industry partners

3. Making face scans mandatory

Right now, CBP says that submitting to its face surveillance system is optional for American citizens, butthere is ample reason to suspect that the government will want to make the face recognition checks mandatory for all. CBP has already said it plans to make face recognition mandatory for noncitizens. A very similar process happened with the TSA’s body scanners: When they were new and controversial, the agency emphasized that they were voluntary, but after controversy died down, TSA quietly made them mandatory.

4. Running faces against watchlists

Once face surveillance becomes entrenched at TSA checkpoints, there will be even more pressure to turn those checkpoints into broader law enforcement checkpoints where people are subject to criminal, immigration, and intelligence watchlist checks. Already CBP said it planned to start running some passenger photos through a biometric watchlist. As such checks expand, pressure will build to try to identify everyone from parole violators to deadbeat dads. And as the number of watchlist checks increases, so would the number of random Americans who get mistaken for somebody on those watchlists.

5. Expanding beyond the airport

If face surveillance becomes pervasive in airports, we can expect to see it expand outward. Airport bag searches were new in American life when they were first introduced in the 1960s and 1970s, and since then, they’ve expanded throughout American life to many office buildings, schools, museums, sports stadiums, and public gatherings. Face recognition, too, is likely to follow this path toward the “airportization of American life.”

In China, the government has installed face surveillance checkpoints at key ports of entry to track and target ethnic minorities, and monitor people across the country. We don’t want to see anything like that happen in our country. CBP’s TVS program is the first government face recognition checkpoint in American history, and if we decide to let its deployment continue, where will that lead? We don’t have to wonder because the government has already told us much of the story. But there’s still a lot more the public needs to know, which is why we’ve asked the government to turn over documents about the program’s implementation and future. At the same time, we’re calling on Congress to press pause on the use of face surveillance for law enforcement and immigration enforcement purposes before it forever alters our free society.

An ACLU white paper on the expansion of CBP’s face recognition program is available here.

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

Rebecca Gill was out of options. At 39 years old, she was arrested and though not convicted of a crime and presumed innocent, confined to a jail cell. This happened because of a cash bail requirement that she couldn’t afford. Her friends didn’t have extra money to help, and she was unlikely to see a judge until she’d been in jail for two full weeks.

Stuck in jail, she was in jeopardy of losing her job and her driver’s license. Losing her license would result in myriad consequences, such as preventing her from getting to work and making it more difficult to take care of her son and mother.

Thankfully, the Nashville Community Bail Fund paid Rebecca’s bail, allowing her to keep her job, her license, and return to her family. The Bail Fund’s work has alleviated tremendous suffering on the part of those incarcerated and their loved ones, reduced the length of time in jail for their participants, improved outcomes, and saved taxpayer dollars. But a local Nashville policy threatens the rights of people like Rebecca, and sets a concerning precedent that could have implications for bail funds nationwide.

Today, the ACLU, Civil Rights Corps, and the Choosing Justice Initiative are standing up to that policy. Together, we are suing in federal court to challenge the constitutionality of the rule and ensure that the Nashville Community Bail Fund is able to continue its important work helping people like Rebecca.

Under the local rule, developed by the Davidson County Criminal Court judges and clerk, anyone trying to post bail on behalf of a friend, loved one, or community member must agree that the money posted is subject to garnishment for any future debts assessed in the case. In other words, anyone paying cash bail must agree that the defendant’s court costs, fines, fees, or restitution can be deducted from their cash bail deposit.

In this manner, the county and local government force people who are at their most vulnerable — stuck in jail, and legally innocent — into an unconstitutional agreement. Furthermore, by extracting this promise to pay court debts using the same money posted to facilitate pretrial freedom, government officials ensure access to revenue by taking a cut of the cash bail deposit.

Let’s say someone is arrested for a crime and ordered to pay a $3,500 bond that they are unable to afford. Their family and friends are then able to put that $3,500 together. Under local policies in Davidson County, that money would only be accepted if the family and friends posting the bond agreed that their money could be used to pay any fines, fees, or costs assessed against their friend in the future. If they don’t agree to this, their loved one remains in jail.

When the founders of our country enshrined the concept of bail into our constitution, it was intended to be a method of facilitating pretrial freedom and reasonably incentivizing incarcerated people to return to court to face charges levied against them. Using bail as ransom money or to generate revenue violates the core tenets of a system of pretrial justice.

In many instances, the money posted as bail doesn’t belong to the arrestee themselves, but is collected by friends, family, and other community members. Using the pressure of jail to force these parties to pay a loved one’s debts — lest they remain incarcerated — is not only illegal, it’s unfair.

Local governments across the country in places like Tennessee, Florida, Alabama, Michigan, and Wisconsin impermissibly use money bail to pay fines, fees, and other debts. These garnishment practices have not been challenged in court in decades.

Bail garnishment policies drive pretrial incarceration with a slurry of related negative consequences both for the individual and the system. These consequences include job loss, the inability to care for family members, exposure to violence in jail, a higher likelihood of pleading guilty, increased long-term recidivism, increased failures to appear in court, and waste of public funds on needless incarceration.

Historically, when a Nashville Community Bail Fund participant completed their case, their bail money was refunded and returned to a rotating pool of cash so the fund could assist the next person. Davidson County’s criminal court judges recently took that option away without any logical reason. Without intervention, the Bail Fund will eventually lose its entire rotating fund and be forced to close.

Since it began operating in 2016, the Bail Fund has freed more than 1,000 people who were incarcerated because they could not come up with $5,000 or less in exchange for their liberty. Several other such bail funds exist across the country. Davidson County’s policy poses a roadblock to these organizations’ crucial work.

The Nashville Community Bail Fund and the ACLU envision a world in which pretrial detention is so rare that there is no longer a need for charitable bail funds. Until that point, bail funds like Nashville’s provide a crucial lifeline. If the fund is forced to close now, thousands of Nashvillians will be left without assistance.

This senseless policy violates the U.S. Constitution. We’re suing to ensure that the work of the Nashville Community Bail Fund and other bail funds across the country are allowed to continue, uninhibited by government officials’ attempts to turn cash bail deposits into a revenue stream.

Andrea Woods, Staff Attorney, ACLU Criminal Law Reform Project