The Federal Trade Commission has no jurisdiction over government entities so when it looks with concern at the use of facial recognition technology, it’s looking at the private sector.
Facial recognition is only one of many biometric technologies, of course, and Congress is pushing hard for biometrics that can help track and control us for various purposes. If anyone should be looking with concern, it should be us looking at the federal government.
There are legitimate uses for biometrics, of course, and well‐designed implementations will undoubtedly benefit us all. But biometrics programs implemented for the government will tend to prioritize hoovering up federal cash over striking delicate balances among cost, effectiveness, privacy, and civil liberties.
So let’s look at how Congress is pressing—and in one case insufficiently restraining—the rapid advance of biometrics.
H.R. 658, the FAA Reauthorization and Reform Act of 2011, has passed the House and awaits action in the Senate. It says that “improved pilot licenses” must be capable “of accommodating a digital photograph, a biometric identifier, and any other unique identifier that the Administrator considers necessary.”
H.R. 1690, the MODERN Security Credentials Act, establishes that air carriers, airport operators, and governments may not employ or contract for the services of a person who has been denied a TWIC card. “TWIC” stands for “Transportation Worker Identity Card,” the vain post‑9/11 effort to secure transportation facilities from bad people. TWIC cards use biometrics.
The Army deploys biometrics. Public Law 112–10, the Department of Defense and Full‐Year Continuing Appropriations Act, 2011 (cost per U.S. family: $13,500+) allowed spending on Army field operating agencies “established to improve the effectiveness and efficiencies of biometric activities and to integrate common biometric technologies throughout the Department of Defense.”
There are lots of biometrics plans in the immigration area. H.R. 1842 is an immigration bill called the Development, Relief, and Education for Alien Minors Act of 2011. (Senate version: S. 952) It would allow an otherwise qualified immigrant to get conditional permanent resident status only after submitting biometric and biographic data for use in security and law enforcement background checks. (Alternative procedures would be available for applicants unable to provide such data because of a physical impairment.)
S. 1258 does roughly the same thing with regard to any lawful immigration status. This bill is called the Comprehensive Immigration Reform Act of 2011, one of many attempts at comprehensive reform. In addition to requiring immigrants to submit biometrics, it also requires the government to issue “documentary evidence of lawful prospective immigrant status” that includes a digitized photograph and at least one other biometric identifier. The bill would also reinforce the use of biometrics in employer background checks and at the border.
H.R. 2463, the Border Security Technology Innovation Act of 2011, calls for continued study of mobile biometric technologies at the border. The Under Secretary for Science and Technology of the Department of Homeland Security would coordinate this research with other biometric identification programs within DHS.
H.R. 2895, the Legal Agricultural Workforce Act, would create a nonimmigrant agricultural worker program. In the program each nonimmigrant agricultural worker would get an identification card that contains biometric identifiers, including fingerprints and a digital photograph.
S. 1384, The HARVEST Act of 2011, is similar. In providing for the temporary employment of foreign agricultural workers, it calls for “a single machine‐readable, tamper‐resistant, and counterfeit‐resistant document” that verifies the identity of the alien through the use of at least one biometric identifier.
There’s more than just immigration. Pursuing waste, fraud, and abuse, H.R. 3735, the Medicare Fraud Enforcement and Prevention Act of 2011, would establish a biometric technology pilot program. The five‐year pilot program would use biometric technology seeking to ensure that Medicare beneficiaries “are physically present” when receiving items and services reimbursable under Medicare. How many biometric scanners would have to be out there for that to work?
S. 744, the Passport Identity Verification Act, calls on the Secretary of State to conduct a study into whether people applying for or renewing passports should provide biometric information, including photographs that facilitate the use of facial recognition technology. I bet the answer they get back is “Yes!” That’s how you build programs in the federal government: do a study, then a pilot program, and then—bingo—you’ve got a full‐fledged, permanent drain on the public fisc.
Speaking of money, S. 1604, the Emergency Port of Entry Personnel and Infrastructure Funding Act of 2011, establishes a grant program in which the Department of Homeland Security would give cash out to state and local law enforcement for the purchase of various technologies including “biometric devices.”
I mentioned that there is a bill that would restrain biometrics insufficiently. H.R. 654 is the Do Not Track Me Online Act. It would direct the Federal Trade Commission to prescribe regulations regarding the collection and use of information obtained by tracking the Internet activity of an individual. The bill would treat unique biometric data, including fingerprints and retina scans, as “sensitive information” while allowing the FTC to modify its definitions.
And the FTC would have to modify the definitions because one’s face is unique biometric data, meaning that anyone who stores photographs online would be subject to regulation under the bill—oh, except the government.
The bill specifically excludes “the Federal Government or any instrumentality of the Federal Government, nor the government of any State or political subdivision of a State.” Too bad biometric sensors don’t pick up hypocrisy.
So there you have it. The Congress is quite engaged in pushing biometrics, including facial recognition. The one bill I found to restrain their use doesn’t apply to the federal government or the states. I’ll be keeping an eye on all this, while the government uses lasers and infra‐red scanners to watch all of us.…
