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Is Homeland Security's Face-Scanning At Airports An Unreasonable Search? (technologyreview.com) 146

schwit1 shares an article from MIT's Technology Review: Facial-recognition systems may indeed speed up the boarding process, as the airlines rolling them out promise. But the real reason they are cropping up in U.S. airports is that the government wants to keep better track of who is leaving the country, by scanning travelers' faces and verifying those scans against photos it already has on file... The U.S. Department of Homeland Security has partnered with airlines including JetBlue and Delta to introduce such recognition systems at New York's JFK International Airport, Washington's Dulles International, and airports in Atlanta, Boston, and Houston, among others. It plans to add more this summer...

As facial-recognition technology has improved significantly in recent years, it has attracted the interest of governments and law enforcement agencies. That's led to debates over whether certain uses of the technology violate constitutional protections against unreasonable searches... Harrison Rudolph, a law fellow at Georgetown Law's Center on Privacy and Technology, and others are raising alarms because as part of the process, U.S. Customs and Border Protection is also scanning the faces of U.S. citizens... They say Congress has never expressly authorized the collection of facial scans from U.S. citizens at the border routinely and without suspicion.

"We aren't entirely sure what the government is doing with the images," the article adds, though it notes that the Department of Homeland Security is saying that it deletes all data pertaining to the images after two weeks. But Slashdot reader schwit1 is still worried about the possibility of an irretrievable loss of privacy, writing that "If the DHS database gets hacked, it's hard to get a new face."

Is Homeland Security's Face-Scanning At Airports An Unreasonable Search?

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  • nope
  • by JoshuaZ ( 1134087 ) on Sunday July 16, 2017 @12:16PM (#54819865) Homepage
    Airports are very public locations so there's no reasonable presumption of privacy under the 4th Amendment. This is not an unreasonable search. Now, for general policy reasons I by and large *don't want the government doing this* for what amount to privacy concerns as well as concerns about too much data being gathered with little oversight, but that doesn't make it an "unreasonable search" in any legal sense. It is possible for something to be a bad idea without it being unconstitutional.
    • by Anonymous Coward

      People are not, in general, boycotting airports. Nor are they refusing to vote for candidates that are pushing for more invasive security theater.

      Therefore, the government will continue to push for ever-more invasive security measures. They will not stop until they are stopped. The only thing I don't understand is why people think this is cynical. This is how the world has always worked.

    • by Anonymous Coward on Sunday July 16, 2017 @01:09PM (#54820151)
      I guess it may meet the definition of a public place. But it doesn't SEEM like it should since everyone inside the secured area has paid a rather large fee to be there, there is security to keep others out, etc. The location is owned by a company. It seems like it would be a private place. But if the definition of public is that anyone not on the 'no fly' list who ponies up a large fee and doesn't carry weapons or even water can enter a privately owned facility - then it is a public place.
      • If you wish to argue it that way, and I am not convinced you're correct, then the airport would be the entity giving permission to search.

        • by Anonymous Coward

          then they do not have the power of the government to enforce it. If they do, then that entity becomes the government's representative and the difference is therefore anulled.

          If you wanted to argue it that way, and I am not convinced you are correct...

          Oh, and to the AC, "this is a picture, so not a search", yeah, right, and if I take a photo of you in the nude, or your wife, or one of your daughters, then that's just a picture, so not an invasion of your privacy, right? Retard.

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      airports may be "public" in terms of facility ownership, but they are hardly "public locations". they have extremely specific conditions on entry to the portions of the facility in which this technology is being deployed. you can't simply walk in and go straight to a gate unhindered and without cost. compare that experience to walking out your front door and to a public sidewalk or street. totally different.

      they're doing this so they can conduct warrantless background checks without cause or justification o

    • You are correct, but I would like some liberal activist judges (in the mold of Nixon appointees Harry Blackmun and Warren Burger) to expand the right of privacy to prevent the government from paying too much attention to anyone. The cost of knowing everything about everyone drops a little every day, but the cost of thought has remained the same. So we have great knowledge with great power, and proportionally very little wisdom being applied. In that sense, we have a very different situation than in 1800, w

    • Re: (Score:2, Informative)

      by Anonymous Coward

      Airports are very public locations.

      Nope, airports in the US are generally privately-owned/managed locations. You retain your civil rights on public property, but not on private property. Private shopping malls are also free to establish policies that would seem to be in violation of basic constitutional rights - because they are on private property, and because governments are not implementing those policies.

      • Private shopping malls are also free to establish policies that would seem to be in violation of basic constitutional rights

        Oh, that must be why I saw a Slaves 'R' Us at our local mall...

      • Nope, airports in the US are generally privately-owned/managed locations.

        Don't know where you got this idea but this is not true. Most airports in the us are owned by public government entities of one form or another. Airport operations are typically contracted out to private companies. Twenty seconds on google would have cleared that up for you.

        Private shopping malls are also free to establish policies that would seem to be in violation of basic constitutional rights - because they are on private property, and because governments are not implementing those policies.

        No they do not get to violate your constitutional rights just because it is private property. The extent of their remedies in the event that you haven't committed a crime on their property is to ask you to leave. That's hardly a vio

    • If the President has to submit to this before boarding Air Force 1, then we are living in a Republic. If not, we are living in a feudal kingdom.

      • All private aircraft owners and operators are exempt from most of the DHS security theater. If you've got your own plane, pretty much nobody cares if you bring a bomb on board. There are also airports that tend to be very lax regarding customs for small planes.
  • by deathguppie ( 768263 ) on Sunday July 16, 2017 @12:20PM (#54819881)
    There are a lot of people that are freaked out about the idea of facial recognition but the reality of walking through the airport without having to show a boarding pass is going to win this argument in the end. People don't like the idea of having a wire tap in their home either but how many times a day is someone, somewhere saying "hey wiretap, can cat's eat pizza?".
    • the reality of walking through the airport without having to show a boarding pass is going to win this argument in the end

      Really? Showing a boarding pass is just about the least onerous thing you do in an airport. If it allowed them to reduce the security theatre required then I'd say it is perhaps worth it. However, since a boarding pass contains information about your seat, gate number and boarding time I am still going to want one whether or not I have to show it and once you have it showing it to someone is not really that hard.

    • Consumers want what? Consumers want speed and convenience. I don't think there's any consumer that at all thinks the process of showing an ID or a boarding pass would actually improve either of the two things they care about.

  • by Anonymous Coward on Sunday July 16, 2017 @12:27PM (#54819911)

    There's little chance this will not be extended to cover domestic air travel as well. That's how these things always go.

    Related: Homeland Security says Americans who don't want faces scanned leaving the country "shouldn't travel" [zdnet.com]

    Yes, you are in public, but there is a qualitative difference between randomly noticing someone's face in a public place, and a systemic collection of everyone's biometric data in a single central government database.

    • Yes, you are in public, but there is a qualitative difference between randomly noticing someone's face in a public place, and a systemic collection of everyone's biometric data in a single central government database.

      Really?

      Let's take the example of a lone police officer and a face in the crowd.

      The officer can spot a face in the crowd accidentally (meaning not specifically looking for it), that's OK, right?

      Now, what if the officer is actually looking for the face in the crowd? That's still OK, right?

      What if that officer uses a security camera and chooses to review the tape off-line (not in real-time), is that OK?

      What if the officer and a friend are going to go thru the tape off-line, is that OK?

      What if the officer emplo

    • Yes, you are in public, but there is a qualitative difference between randomly noticing someone's face in a public place, and a systemic collection of everyone's biometric data in a single central government database.

      You mean like in passports, drivers licenses, and then logging the fact that you were there by ... errr... checking ID at the gate?

      I'm trying to figure out what you're hoping to avoid here, but I think you lost this battle before it even started.

    • by AHuxley ( 892839 )
      In some states the front and back license plate, driver and any passenger faces have been recorded domestically for some time.
      Surveillance Cameras At Border Capture License Plates, Location, Date & Time (12/07/2012)
      http://www.huffingtonpost.com.... [huffingtonpost.com.au]
    • by guises ( 2423402 )
      You're thinking too small. Remember the TSA's VIPER teams at train stations? If people don't push back on this, we can expect it implemented at every train station, bus station, and any other transportation hub you can think of, and probably soon(ish). The security cameras are already there. Maybe they don't all have the resolution to do decent facial recognition right now, but they all need to be replaced eventually. And while they're being replaced, why not future proof them a little? You know, just in ca
  • Betteridge (Score:5, Informative)

    by PPH ( 736903 ) on Sunday July 16, 2017 @12:29PM (#54819927)

    No.

    Your face is already visible to the public. And if it's an issue of tracking people _leaving_ the country, there are numerous ways to leave with no supervision whatsoever. The country you are entering may want to run a check, which is perfectly reasonable.

    As for the issue of collecting facial scans, I assume that they are capturing an image for the purpose of facial recognition. Meaning that they already have a picture of you on file somewhere. Which has been true since the first person ever sat for a passport or drivers license photo.

    • by JimBobJoe ( 2758 ) <swiftheart&gmail,com> on Sunday July 16, 2017 @03:57PM (#54821123)

      >Which has been true since the first person ever sat for a passport or drivers license photo.

      Yeah but those were done with very different technology.

      For instance, my state added the photo to the driver's license but, by law, didn't authorize or intend to create a central catalog of photos. The law merely said the state could add a photo to the license. Years later when they went to digital licenses, the state just adopted the central database. And as time has gone on, they have increased the quality of the photos captured so they can be used for biometric matching. Several generations of technology improvements have occurred and yet the state still never got authority to keep a central photo archive. Taking a mile from an inch.

      In the same way, the passport has you send in two pictures. But there is a world of difference between operating a central passport photo database with facial recognition, and having a paper file somewhere with the 2nd picture sitting in it, which can only be referenced manually by a human.

  • Let's not forget (Score:5, Insightful)

    by kenh ( 9056 ) on Sunday July 16, 2017 @12:31PM (#54819939) Homepage Journal

    Travelers are required to produce photo ID to board a plane, and that requirement has morphed into a need to produce photo ID to enter the terminal.

    "The Government" already knows you are there, they saw your ID, if they see a face that is supposed to be there, either a face that slipped past security or a known face of a wanted/watched individual, that is something they need to know.

    You gave up your right to annonynimty when you showed the TSA worker your driver's license/passport.

    • Re: (Score:1, Insightful)

      by Anonymous Coward

      You gave up all your rights when you decided to be a pussy and tolerate whatever evil shit your government does instead of removing your leaders if they do not respect individual liberty and civil rights.

      FTFY

    • Why is this insightful? It's simply wrong. You are not required to show ID to fly on domestic U.S. routes period. You'll go through a more comprehensive pat down and bag search before passing through security, but that's it. Having ID is not a requirement.

      https://papersplease.org/gilmo... [papersplease.org]

  • At every single passport control my face was scanned. That includes the EU countries.

    I am not particularly outraged by this US airport policy (though I don't travel to the US much, lately).

  • by sjbe ( 173966 ) on Sunday July 16, 2017 @12:38PM (#54819977)

    Probably not unreasonable by itself. It would be possible to turn it into an unreasonable search depending on what they do with the information. If they automate a deep dive into your background then somewhere along the line they probably have crossed a line violating 4th amendment rights. But merely attaching names to faces in a place where they are already asking for your id anyway probably isn't too big a deal. It just automates basically what they are doing already.

  • Twitter? (Score:3, Informative)

    by Midnight Thunder ( 17205 ) on Sunday July 16, 2017 @12:41PM (#54820001) Homepage Journal

    Maybe they are going to be posted on twitter, along with the rest of the voting data? All the while our dear commander in chief keeps his own tax data private.

    • All the while our dear commander in chief keeps his own tax data private.

      As it is his right to, just as it is your right to keep your tax records private.

      The tradition of sharing tax forms is just that, a tradition - just like getting a White House dog or granting a reprieve to a turkey in late November.

      Your desire to see his tax forms doesn't obligate him to share them.

      • All the while our dear commander in chief keeps his own tax data private.

        As it is his right to, just as it is your right to keep your tax records private.

        The tradition of sharing tax forms is just that, a tradition - just like getting a White House dog or granting a reprieve to a turkey in late November.

        Your desire to see his tax forms doesn't obligate him to share them.

        It was more about how he is quite willing to make public the private data of US citizens, while being opaque with his own. Not an attitude that inspires trust.

  • by Anonymous Coward

    Almost everything they do at airports today is unreasonable.

  • As far as I am concerned, if the government has no specific and articulable facts that would lead a REASONABLE person to believe that you are involved in criminal activity, then the government has no right to even ask your name, let alone look you up in a database, run your license plate, or google you.

    • Welcome to the world where you are guilty until the powers that be think you are docile enough to be innocent.

    • if the government has no specific and articulable facts that would lead a REASONABLE person to believe that you are involved in criminal activity, then the government has no right to even ask your name, let alone look you up in a database, run your license plate, or google you.

      The Trump campaign, transition, and administration all heartily agree - now can we stop the witch hunt into supposed 'Russian Collusion' since we have no specific and articulable facts To support the investigations?

    • In other words, you think the government should have no right to investigate someone without already having probable cause of criminal activity?

  • by rsilvergun ( 571051 ) on Sunday July 16, 2017 @12:59PM (#54820093)
    by anonymity. As tech improves it's inevitable. What we should be focusing on is making sure it doesn't matter. Ask yourself why people abuse tech? It's always the same reason. Wealth inequality. A small group of people take all the money, use it as power and then have to oppress to keep it. Everything always comes down to money. To wealth.

    If you want to stop these kinds of abuses you need to create a society where the people with more money than average don't get to decide who lives and who dies. Until then it's all just deck chairs on the Titanic.
  • You'd think that a law fellow would know the difference between pictures in public vs an unreasonable search & seizure.

    Is there a way to disbar him for yelling fire in a crowded theatre?

  • Setting aside for the moment the sillyness of the no fly list and our specific paranoia about terrorists on airplanes (as compared to other more practical threats)...

    If the purpose of the scan is strictly to more quickly and accurately answer the question "Is this person on a list of people we have decided should not fly?", I don't find the concept so offensive and in conflict with unreasonable search. However if the the purpose of the scan is (or becomes) to track the movement of citizens who are not ch
  • by thegarbz ( 1787294 ) on Sunday July 16, 2017 @01:37PM (#54820283)

    The checking of ID / boarding passes has never been the limiting factor when boarding the plane. All this would achieve is moving more people from the queue outside the gate to the queue inside the airbridge or worse on the tarmac as we wait for several hundred people to one after the other get their shit together, find some space in an overhead compartment, sit down, and then stand up again when the next person needs to move past them.

    If airlines wanted to speed up boarding that would abolish priority boarding and board by seat row only and additionally actually enforce which rows they are boarding. Though they pretty much have given up on priority anyway since every schmuck has a priority card now. Heck I flew in a flight once where there were 7 people who *didn't* have priority boarding, and then some business class passenger got upset when the airline refused to let him push infront of the other priority passengers. But I digress.

  • Never ending story (Score:5, Insightful)

    by Aethedor ( 973725 ) on Sunday July 16, 2017 @01:38PM (#54820287) Homepage

    The more the USA tries to 'fight terrorism' with these kind of measures, the more the terrorist will win. Terrorist organisations come and go. Look back in history. IRA, ETA, Osama Bin Laden, Taiban, Al-Qaida, Boko Haram, Islamic State, and the list goes on. For one a terrorist, for the other a freedom fighter. But, they never last. The only thing changes is the way countries deal with it. If you look at the amount of terrorist attacks over the years, you come to the conclusion that the world has become a saver place. Yes, although we hear more of terrorist attacks due to better news coverage, there are less terrorist attacks today then 10 or 20 years ago. But governments somehow don't see that. They come up with more and more 'security' measures. But those measures don't make this world safer, they only take away freedom and privacy.

    The USA has very strict anti-terrorism measures, but the attack in Boston still happened. The anti-terrorism measures in Europe also become more strict, but the attacks in Madrid, Brussels and Paris still happened. Airports are becoming a hard target, so terrorist move to other tactics, like simply taking a van and drive it into a crowded place. We have to accept that you can't stop it. Name an anti-terrorist measure and I'll tell you a way to still commit a terrorist attack. To only way to fight terror is by not giving in to fear.

    Scanning faces at airports won't stop any terrorist. So, yes, I say they are an unreasonable search.

  • We have millions of people going through each airport every year. You'll need a pretty huge database. And a lot of people look fairly similar.

    Are the false match rates really good enough to make this worthwhile?
    • by AHuxley ( 892839 )
      A few measurements per face from a face on 2d picture? The ability to build up some measurements from an image more side on, looking up or down?
      That created list of numbers can be compared to every police booking photograph and private sector photograph the US gov collected or has access to in seconds.

      Facial Recognition Software Moves From Overseas Wars to Local Police (Aug. 12, 2015)
      https://www.nytimes.com/2015/0... [nytimes.com] "rate of more than one million faces a second." is now for state or city use in 2015
    • It's more like the false match rates from humans are so bad that it's likely image recognition software is better.

      I'm pretty decent at recognizing people, I dashed off a fast attempt at this and got top 20% https://www.testmybrain.org/Su... [testmybrain.org]
      and I tend to be the one that recognizes heavily made-up people in movies first, or when they're 20 years younger in a small role in an old movie, etc. But most people are pretty bad at it, and it's the primary job the people at the border passport checks are doing, and f

  • Records of who enters and leaves the country are already kept, and in fact have been kept for decades. This isn't a new unreasonable search of any kind. So that side of the argument is irrelevant.

    As for facial images - US (and other) passports already require expression-neutral images explicitly for the purpose of machine recognition to make it impossible for multiple passports to be issued to a single individual. If you have a passport issued in the last decade or so, your face is ALREADY in "the system".

    • You have the option not to enter if you do not wish to be searched.

      Do you?

      If you get a driver license you are required to sign a statement that you waive the right to deny a search for alcohol. If there is a state that does not have a similar waiver then I'd be surprised. Do you say that if you do not wish to be searched then don't drive? I've often wondered, what would happen if a person was driving without a license and refused a search for alcohol? They signed no waiver. Seems to me the reasonable thing to do is drive without a license.

      In most states shops that sel

      • by larwe ( 858929 )
        Heh. So, all the points you made there are very valid. I should have said more clearly what I meant, which is very tightly scoped: If you do not wish to be subjected to the particular surveillance activities that occur at airports, you have the option not to visit airports. Of course there is a large and growing surveillance web elsewhere also, though thankfully not so deep (or so well accepted) here in the US as in somewhere like, say, the UK. I would like to believe that there could be a revolt against it
  • >" though it notes that the Department of Homeland Security is saying that it deletes all data pertaining to the images after two weeks."

    OK, could there be any funnier statement? That is just beyond unbelievable. So no photo is retained, no record of the comparison retained, and no meta data or biometric representation is retained, by ANY government or private agency? And how would they prove that?

    The really sad part is that there are actually people out there who would believe such things. The only

  • I'm ok with it, as long as everyone understands about false positive matches, and gets the requisite education in statistics to treat the results with the proper amount of skepticism.

  • Yes, it is an unreasonable search.

    FTA: The effort is in response to a years-old mandate from Congress that DHS implement a biometric system for recording the entry and exit of non–U.S. citizens at all air, sea, and land ports of entry.

    The Supreme Court can strike down illegal laws, or more specifically, ones in conflict with the US Constitution. So, just having a Congressional Order doesn't make it ethical, legal, right, or enforceable.

    Additionally, this is clearly outside of the purview of the DHS.

    • No, it won't. At least, not for the reasons you claim, which are nonsense.

      • No, it won't. At least, not for the reasons you claim, which are nonsense.

        I'm just quoting the TSA Mission Statement articles, which, like any US Federal Agency, are written by Congress, and are Law. No Federal agency has authority beyond that to which is specifically placed under its purview.

        To feed the troll by responding: I am right, and you are wrong.

        My predicting when in the future specific events cannot be wrong, you douche, because it is a prediction. And if such comes to pass, it will have different wording, but will (as I predict) boil-down in some way to the reach of

  • You're in a public place. You, just like the police, can be filmed and / or watched at any time.

    You can't bitch about one and demand the other.

  • FTA: "... According to DHS, if a U.S. citizen asks not to participate, an available CBP officer “may use manual processing to verify the individual’s identity.”"

    and

    FTA: "... , but DHS says that all data pertaining to the images is deleted within 14 days."

    So, "If a US Citizen..." STOP right there. Hey, you TSA dipshit, I just showed you my US Passport, therefore you know for certain that I am not a foreign national, and am exempt from this facial-scanning scrutiny.

    Then the deletion of "d

    • by srg33 ( 1095679 )
      Nice try? Did you check the dictionary? I did.
      Merriam-Webster: a (1) : to belong as a part, member, accessory, or product (2) : to belong as an attribute, feature, or function * the destruction pertaining to war (3) : to belong as a duty or right * rights that pertain to fatherhood b : to be appropriate to something which rule pertains?
      So, the "the photo-derived biometric data" (your phrase) is an attribute or function of the image and therefore "data pertaining to the images" (your cite FTA) to be
      • Nice try? Did you check the dictionary? I did.

        Merriam-Webster:
        a (1) : to belong as a part, member, accessory, or product (2) : to belong as an attribute, feature, or function * the destruction pertaining to war (3) : to belong as a duty or right * rights that pertain to fatherhood
        b : to be appropriate to something which rule pertains?

        So, the "the photo-derived biometric data" (your phrase) is an attribute or function of the image and therefore "data pertaining to the images" (your cite FTA) to be "deleted within 14 days."
        (It might be arguable that the raw image scan data is the image and therefore not data pertaining to the image. I do not believe that this is correct, but ...)

        Also, your comment about fingerprint databases is irrelevant because nobody said that anything was deleted from those databases.

        I use the more-trusted American Heritage Dictionary, and as an international backup to that, the OED.

        My fingerprint example was simply the best-available comparative case for discussion. Nothing more.

        You should learn to quit reading things into text that were not placed by the author. Don't project your conspiratorial world-view onto things that the rest of us (thinking people) write. Put your tin-foil hat back on and go talk to some poltergeists.

  • Yoda, I am. First your face take off, you.
  • In order to be able to determine an answer to this question, there are at least two or three factors we would have to consider - without which our answer should be that this is not OK (on the grounds that it is better to fail safe than fail dangerous). 1. Presumption of Innocence
    This is the most important perspective for me. The moment we see blanket surveillance or blanket monitoring or blanket call screening or capturing license plates of all vehicles... we have moved into a scenario where the observers
    • by AHuxley ( 892839 )
      1. Presumption of Innocence. Why is an interesting person at an airport doing something or waiting for someone? Domestic areas might have interesting international people too, so just watch everyone.. Renting a car? Been collected by family or an unknown friend in the USA
      CCTV and other more hidden methods get all that on file. They have a smart phone on at any time?
      2. Rights of Access and Usage. Airports often got different legal protections for international travel. Also consider the history of le
  • "the Department of Homeland Security is saying it deletes all data pertaining to the images after two weeks."

    Bull. Fucking. Shit.

  • Tracking who enters and leaves that is.

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