EFF, joined by several leading civil liberties and immigrant rights organizations, recently filed a comment calling on the Department of Homeland Security (DHS) to withdraw a proposed rule that would exponentially expand biometrics collection from both U.S. citizens and noncitizens who apply for immigration benefits and would allow DHS to mandate the collection of face data, iris scans, palm prints, voice prints, and DNA. DHS received more than 5,000 comments in response to the proposed rule, and five U.S. Senators also demanded that DHS abandon the proposal.    

DHS’s biometrics database is already the second largest in the world. It contains biometrics from more than 260 million people. If DHS’s proposed rule takes effect, DHS estimates that it would nearly double the number of people added to that database each year, to over 6 million people. And, equally important, the rule would expand both the types of biometrics DHS collects and how DHS uses them.  

What the Rule Would Do

Currently, DHS requires applicants for certain, but not all, immigration benefits to submit fingerprints, photographs, or signatures. DHS’s proposed rule would change that regime in three significant ways.   

First, the proposed rule would make mandatory biometrics submission the default for anyone who submits an application for an immigration benefit. In addition to adding millions of non-citizens, this change would sweep in hundreds of thousands of U.S. citizens and lawful permanent residents who file applications on behalf of family members each year. DHS also proposes to lift its restrictions on the collection of biometrics from children to allow the agency to mandate collection from children under the age of 14. 

Second, the proposed rule would expand the types of biometrics DHS can collect from applicants. The rule would explicitly give DHS the authority to collect palm prints, photographs “including facial images specifically for facial recognition, as well as photographs of physical or anatomical features such as scars, skin marks, and tattoos,” voice prints, iris images, and DNA. In addition, by proposing a new and expansive definition of the term “biometrics,” DHS is laying the groundwork to collect behavioral biometrics, which can identify a person through the analysis of their movements, such as their gait or the way they type. 

Third, the proposed rule would expand how DHS uses biometrics. The proposal states that a core goal of DHS’s expansion of biometrics collection would be to implement “enhanced and continuous vetting,” which would require immigrants “be subjected to continued and subsequent evaluation to ensure they continue to present no risk of causing harm subsequent to their entry.” This type of enhanced vetting was originally contemplated in Executive Order 13780, which also banned nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States. While DHS offers few details about what such a program would entail, it appears that DHS would collect biometric data as part of routine immigration applications in order to share that data with other law enforcement agencies and monitor individuals indefinitely.

The Rule Is Fatally Flawed and Must Be Stopped 

EFF and our partners oppose this proposed rule on multiple grounds. It fails to take into account the serious privacy and security risks of expanding biometrics collection; it threatens First Amendment activity; and it does not adequately address the risk of error in the technologies and databases that store biometric data. Lastly, DHS has failed to  provide sufficient justification for these drastic changes, and the proposed changes exceed DHS’s statutory authority. 

Privacy and Security Threats

The breadth of the information DHS wants to collect is massive. DHS’s new definition of biometrics would allow for virtually unbounded biometrics collection in the future, creating untold threats to privacy and personal autonomy. This is especially true of behavioral biometrics, which can be collected without a person’s knowledge or consent, expose highly personal and sensitive information about a person beyond mere identity, and allow for tracking on a mass scale. Notably, both Democratic and Republican members of Congress have condemned China’s similar use of biometrics to track the Uyghur Muslim population in Xinjiang.

Of the new types of biometrics DHS plans to collect, DNA collection presents unique threats to privacy. Unlike other biometrics such as fingerprints, DNA contains our most private and personal information. DHS plans to collect DNA specifically to determine genetic family relationships and will store that relationship information with each DNA profile, thus allowing the agency to identify and map immigrant families and, eventually over time, whole immigrant communities. DHS suggests that it will store DNA data indefinitely and makes clear that it retains the authority to share this data with law enforcement. Sharing this data with law enforcement only increases the risk those required to give samples will be erroneously linked to a crime, while exacerbating problems related to the disproportionate number of people of color whose samples are included in government DNA databases. 

Not only is the government’s increased collection of highly sensitive personal data troubling because of the ways the government might use it, but also because that data could end up in the hands of bad actors. Put simply, DHS has not demonstrated that it can keep biometrics safe. For example, just last month, DHS’s Office of Inspector General (OIG) found that the agency’s inadequate security practices enabled bad actors to steal nearly 200,000 travelers’ face images from a subcontractor’s computers. A Government Accountability Office report similarly “identified long-standing challenges in CBP’s efforts to develop and implement [its biometric entry and exit] system.” There have also been serious security breaches from insiders at USCIS. And other federal agencies have had similar challenges in securing biometric data: in 2015, sensitive data on more than 25 million people stored in the Office of Personnel Management databases was stolen. And, as the multiple security breaches of India’s Aadhar national biometric database have shown in the international context, these breaches can make millions of individuals subject to fraud and identity theft.

The risk of security breaches to children’s biometrics is especially acute. A recent U.S. Senate Commerce Committee report collects a number of studies that “indicate that large numbers of children in the United States are victims of identity theft.” Breaches of children’s biometric data further exacerbate this security risk because biometrics cannot be changed. As a recent UNICEF report explains, the collection of children’s biometric information exposes them to “lifelong data risks” that are not possible to presently evaluate. Never before has biometric information been collected from birth, and we do not know how the data collected today will be used in the future.

First Amendment Risks

This massive collection of biometric data—and the danger that it could be leaked—places a significant burden on First Amendment activity. By collecting and retaining biometric data like face recognition and sharing it broadly with federal, state, and local agencies, as well as with contractors and foreign governments, DHS lays the groundwork for a vast surveillance and tracking network that could impact individuals and communities for years to come. DHS could soon build a database large enough to identify and track all people in public places, without their knowledge—not just in places the agency oversees, like at the border, but anywhere there are cameras. This burden falls disproportionately on communities of color, immigrants, religious minorities, and other marginalized groups that are the most likely to encounter DHS. 

If immigrants and their U.S. citizen and permanent resident family members know the government can request, retain, and share with other law enforcement agencies their most intimate biometric information at every stage of the immigration lifecycle, many may self-censor and refrain from asserting their First Amendment rights. Studies show that surveillance systems and the overcollection of data by the government chill expressive and religious activity. For example, in 2013, a study involving Muslims in New York and New Jersey found excessive police surveillance in Muslim communities had a significant chilling effect on First Amendment-protected activities.

Problems with Biometric Technology

DHS’s decision to move forward with biometrics expansion is also questionable because the agency fails to consider the lack of reliability of many biometric technologies and the databases that store this information. One of the methods DHS proposes to employ to collect DNA, known as Rapid DNA, has been shown to be error prone. Meanwhile, studies have found significant error rates across face recognition systems for people with darker skin, and especially for Black women. 

Moreover, it remains far from clear that collecting more biometrics will make DHS’s already flawed databases any more accurate. In fact, in a recent case challenging the reliability of DHS databases, a federal district court found that independent investigations of several DHS databases highlighted high error rates within the systems. For example, in 2017, the DHS OIG found that the database used for information about visa overstays was wrong 42 percent of the time. Other databases used to identify lawful permanent residents and people with protected status had a 30 percent error rate.

DHS’s Flawed Justification

DHS has offered little justification for this massive expansion of biometric data collection. In the proposed rule, DHS suggests that the new system will “provide DHS with the improved ability to identify and limit fraud.” However, the scant evidence that DHS offers to demonstrate the existence of fraud cannot justify its expansive changes. For example, DHS purports to justify its collection of DNA from children based on the fact that there were “432 incidents of fraudulent family claims” between July 1, 2019 and November 7, 2019 along the southern border. Not only does DHS not define what constitutes a “fraudulent family,” but also it leaves out that during that same period, an estimated 100,000 family units crossed the southern border, meaning that the so-called “fraudulent family” units made up less than one-half of one percent of all family crossings. And we’ve seen this before: the Trump administration has a troubling record of raising false alarms about fraud in the immigration context.

In addition, DHS does not address the privacy costs discussed in depth above. The proposed rule merely notes that “[t]here could be some unquantified impacts related to privacy concerns for risks associated with the collection.” And of course, the changes would come at a considerable financial cost to taxpayers, at a time when USCIS is already experiencing fiscal challenges. Even with the millions of dollars in new fees USCIS will collect, the rule is estimated to cost anywhere from $2.25 to $5 billion over the next 10 years. DHS also notes that additional costs could manifest.

Beyond DHS’s Mandate

Congress has not given DHS the authority to expand biometrics collection in this manner. When Congress has wanted DHS to use biometrics, it has said so clearly. For example, after 9/11, Congress directed DHS to “develop a plan to accelerate the full implementation of an automated biometric entry and exit data system.” But DHS can point to no such authorization in this instance. In fact, Congress is actively considering measures to restrict the government’s use of biometrics. It is not the place for a federal agency to supersede debate in Congress. Elected lawmakers must resolve these important matters through the democratic process before DHS can put forward a proposal like the proposed rule, which seeks to perform an end run around the democratic process.    

What’s Next

If DHS makes this rule final, Congress has the power to block it from taking effect. We hope that DHS will take seriously our comments. But if it doesn’t, Congress will be hearing from us and our members.