EFF legal intern Gabrielle Ladun was the principal author of this post. 

The Department of Homeland Security Office of Inspector General (DHS OIG) has published a summary of findings from its audit of the Transportation Security Administration’s (TSA) facial recognition technology. While the detailed findings are classified, the summary states that the OIG’s audit uncovered a “significant weakness” in the technology’s ability to protect the privacy of passenger data. This has massive privacy implications for the millions of passengers who travel and don’t opt out of the TSA’s biometric surveillance technology verification process. 

TSA uses facial comparison technology for identity verification of airline passengers. A camera takes a photo of passengers to verify that their provided identification matches their live photo. Although TSA states that it is “committed to protecting traveler privacy,” the audit highlights that this has not been the case.  

The OIG found that TSA’s Credential Authentication Technology 2’s (CAT-2) vendor “was able to access and extract sensitive passenger information, including driver’s license and passport images, during system troubleshooting and enhancements, without TSA’s knowledge.”  

The OIG further admonished the agency:  

TSA lacked clear policies, did not track when this data was extracted, could not verify that extracted information was properly deleted, and did not notify passengers when their biometric and biographic information may have been stored. As a result, although passenger information was generally protected during routine operations, weaknesses in vendor oversight created a risk that sensitive personal information could be retained or exposed. 

We hope the TSA will fix these issues. The OIG summary states: 

We issued one finding and three recommendations to strengthen controls, improve oversight, and ensure transparency and the proper handling of passenger data. TSA concurred with all three recommendations. Two recommendations are open and resolved, and one remains open and unresolved. 

Why EFF Opposes the Government’s Use of Facial Recognition Technology 

EFF has a long history of opposing governmental use of facial recognition technology. As the OIG’s audit underscores, this technology presents privacy risks associated with unsecured data, unauthorized access, and data breaches. The government’s use of this technology also creates a mass surveillance system and facilitates the creation of warrantless biometric records for unconsenting parties.  

The biometric data captured by this technology is not without errors. There have been multiple instances of law enforcement agencies using facial recognition technology to misidentify and arrest innocent individuals.  

Reminder: Opting Out of TSA Photos Is Possible 

Given that facial recognition technology is prone to mistakes, combined with the OIG’s audit revealing significant privacy weaknesses, it is imperative that travelers remember that opting out is possible. TSA’s own website emphasizes that travelers who wish to decline to have their photo taken for facial comparison can do so without any delay, disruption, or recourse.  

Considering the data protection weaknesses exposed by the OIG’s audit, EFF will continue to oppose this governmental system of mass surveillance and spread awareness to ensure that no one is forced to relinquish their biometric data without consent. 

This week, EFF, along with Big Brother Watch, Defend Digital Me, Liberty, Open Rights Group, Race Equality First, Statewatch, and Stopwatch, wrote to Nottinghamshire Police Force in the UK raising concern about the proposed roll-out of live facial recognition technology (LFR), and called for its immediate halt.

In particular, the letter highlights six concerns:

LFR Is Not "Just Another Tool"

Nottinghamshire Police has stated that “facial recognition is just another tool to fight crime.” But LFR used in public spaces is an incredibly intrusive biometric mass surveillance technology that scans the faces of everyone who walks past the camera and takes biometric face prints. This is not just another tool, but a major escalation of surveillance that treats everyone as a suspect by default.

People Having "Nothing to Worry About" Does Not Hold to Scrutiny 

According to Nottinghamshire Police, “if you aren’t entering the city or county to commit crime then you have nothing to worry about.” However, many people have legitimate concerns about the normalisation of invasive technologies. So a public that cannot move around their towns and cities without being subjected to a biometric identity check may be less willing to seek medical care or legal advice, speak with journalists, act in a union, vote, protest, or express their gender, sexual or religious identity. 

Disproportionate Targeting With LFR

We are particularly concerned to learn that Nottinghamshire Police could deploy LFR to tackle low level crimes, such as youth behavior deemed anti-social, as part of Operation View. Reporting suggests that the force already possesses “a watchlist of young people believed to be causing the most problems,” including children as young as 11 years old. It would be highly disproportionate to deploy live facial recognition to tackle this behaviour. Many of these children are reportedly known to the police, and it is highly likely that there are more proportionate means for locating them. 

LFR Could Increase Social Problems

We are also concerned that Nottinghamshire Police has not adequately examined the distinct risks of using LFR to target children, including negative impacts on their behaviour and outcomes, risk of recidivism, and relationship with the police. Use of LFR could exacerbate behavioural problems in children and create an adversarial, rather than trusting, relationship with the police from a young age. 

Lack of Public Support 

Recent polling commissioned by Liberty indicated that 48% of people oppose scanning the faces of those walking on high streets when there is no suspected imminent threat. Furthermore, Opinium found that the majority of people oppose the use of facial recognition in schools. Likewise, a report by the London Policing Ethics Panel found that Londoners aged 16-24 were most likely to find the Metropolitan Police Service’s use of LFR unacceptable and most likely to stay away from events where LFR was in use.

On these grounds, Nottinghamshire Police must immediately halt their plans to use live facial recognition surveillance any further.

Read our full letter here.