Via Federal e-Rulemaking Portal

Michael Hardin

Director, Entry/Exit Policy and Planning

Office of Field Operations,

U.S. Customs and Border Protection, 5th Floor

1300 Pennsylvania Avenue NW

Washington, DC 20229

Re: Collection of Biometric Data from Aliens Upon

Entry to and Departure from the United States

86 Fed. Reg. 8878 (Feb 10, 2021)

Docket No. USCBP-2020-0062,

RIN 1651-AB12, Doc. No. 2021-02699

Dear Mr. Hardin,

Brooklyn Defender Services (“BDS”) submits these comments in opposition to the Department of Homeland Security’s (“DHS”) Proposed Rulemaking on Collection of Biometric Data from Aliens Upon Entry to and Departure from the United States, 86 Fed. Reg. 8878, Docket No. USCBP-2020-0062, (hereinafter, “Proposed Rule”), originally issued on November 19, 2020 at 85 Fed. Reg. 74162, Doc. No. 2020-24707. For the reasons set forth below, BDS strongly opposes the Rule.

BDS is a full-service public defender organization in Brooklyn, New York, that provides multi-disciplinary and client-centered criminal defense, family defense, immigration, and civil legal services, along with social work and advocacy support. BDS represents low-income people in nearly 30,000 criminal, family, civil, and immigration proceedings each year. Since 2009, BDS has counseled, advised, or represented more than 15,000 clients in immigration matters, including deportation defense, affirmative applications, advisals, and immigration consequence consultations in Brooklyn’s criminal court system. About a quarter of BDS’s criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore risk losing the opportunity to obtain lawful immigration status as a result of criminal or family defense cases. Our criminal-immigration specialists provide support and expertise on thousands of such cases. In addition, BDS is one of three New York Immigrant Family Unity Project (“NYIFUP”) providers and has represented more than 1,500 people in detained deportation proceedings since the inception of the program in 2013. BDS’s immigration practice also represents people in applications for immigration relief, adjustment of status, and naturalization before the United States Citizenship and Immigration Services (“USCIS”), in non-detained removal proceedings in New York’s immigration courts, in petitions for review before the U.S. Circuit Court of Appeals for the Second and Third Circuits, and in writs of mandamus and habeas corpus in U.S. district courts.

BDS strongly urges DHS to rescind the Proposed Rule as it exponentially increases the scope of permissible mass surveillance on the backs of marginalized people, expands DHS’s authority beyond what was intended by Congress, and fails to fulfill even the stated goals of the government. By creating a self-described “integrated biometric entry-exit system” that will, by default, collect facial identifications of all people coming into or leaving the country, regardless of citizenship status, the Proposed Rule threatens to destroy all remaining vestiges of privacy in the United States. Yet the Proposed Rule masks its true aims in language of crime, terrorism, and national security, characterizing immigrants as potential “imposters, . . . criminals, and known or suspected terrorists.” 85 Fed. Reg. at 74,163, reopened for comment at 86 Fed. Reg. 8878. While these implications became far-too-commonplace during the last four years, they are baseless, offensive, and dangerous. And while the effects of the Proposed Rule would be felt across racial, religious, ethnic, and immigration status lines, they would disproportionately impact marginalized populations, many of whom BDS advocates for on a daily basis. Equally troubling, the Proposed Rule disregards constitutionally-mandated due process guarantees and undermines public safety by relying heavily on facial recognition technology that has been shown to be both biased and unacceptably intrusive.

Further, in this Rule, the Federal government has granted itself overly broad, unchecked discretion that represents massive policy changes, without abiding by administrative rulemaking requirements. In the face of these near-certain harms to immigrants and non-immigrants alike, the Proposed Rule serves no legitimate governmental purpose and represents a slippery slope towards a true surveillance state. In order to prevent these immediate and far-reaching ramifications, BDS asks that DHS immediately halt implementation of the Proposed Rule.

The Proposed Rule Undermines Constitutional Guarantees and Authorizes Constitutionally Suspect Mass Surveillance and Data Collection

Across the United States, data privacy is the subject of discussion, debate, and legislation. Bans on facial recognition technology have been adopted in municipalities across the country, from Portland and San Francisco to Boston and Somerville, and the European Union has banned one of the largest commercial faceprint aggregators, Clearview AI.¹ National and state level bans or moratoriums on facial recognition technology and biometric data systems are being proposed and debated.² Corporations from Microsoft to IBM have publicly denounced the use of technology for mass surveillance and pledged to divest from technology that is used to perpetuate racial injustice.³

Despite this widespread outcry, the Proposed Rule imposes an expansive new surveillance and faceprint collection regime that is diametrically opposed to countless state and local laws and policies. Under the Proposed Rule, any person⁴ entering or leaving the United States will be subject to surveillance—potentially surreptitious—in the form of faceprint collection. Upon collection, those faceprints will be entered into a database and, in the case of noncitizen travelers, saved for up to 75 years.⁵ There is no attempt to seek consent for faceprint capturing— in fact no opt out is allowed for noncitizen travelers at all, no mechanism to challenge the capture or inclusion of one’s information in any government database, and no means to control what happens to one’s faceprint and other data once it is collected by Customs and Border Protection (“CBP”).

Buried within the overlap between this Proposed Rule and DHS’s Rule on Collection and Use of Biometrics by U.S. Citizenship and Immigration Services proposed in 2020 is the introduction of an interface between the proposed biometric data collection and DHS’s cloud- based, massive Homeland Advanced Recognition Technology (“HART”) database. Housed on Amazon’s servers, HART is currently the second largest biometric databasing system in the world. The data aggregation and analysis capabilities introduced by this proposed interaction between HART and the data collected under this Proposed Rule are antithetical to a free democracy. Tellingly, the Proposed Rule provides no detail about this proposed relationship or any proposed regulation of that relationship. What is abundantly clear is that the Proposed Rule’s data collection and aggregation program has not undergone a full privacy impact assessment. And, in fact, the Government Accountability Offices’ (“GAO”) specific privacy and performance concerns regarding the Biometric Entry/Exit Program have yet to be addressed.⁶ In the absence of a full privacy impact assessment, this Proposed Rule should fail at the outset.

While policymakers and advocates regularly warn of the dangers of data sharing, the Proposed Rule promises to share intimate data far and wide, first by facilitating national and international sharing with undefined “law enforcement” entities and potentially by building public- private partnerships with airlines and other corporate entities. Perhaps most alarmingly, the Proposed Rule seeks to exercise nearly unfettered discretion in implementing this program, without identifying partners, defining parameters of information sharing, or setting forth any limitations. And its justification for doing so is little more than a nod towards efficiency and vague assertions of national security.

Beyond the public policy and privacy implications, the Proposed Rule violates fundamental Constitutional principles. Initially, it threatens the universal right to public anonymity, which itself underlies the First Amendment’s protection for freedom of thought. As the Supreme Court has explained: “Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society.” McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357 (1995) (internal citation omitted). The Proposed Rule represents a direct assault on anonymity and thus the Bill of Rights: it has the potential not only to violate the First Amendment rights of marginalized communities, but all residents of the United States. Individuals may rightly fear exercising their First Amendment rights by attending a protest or speaking out against the government for fear that they could be instantaneously tracked and identified against their will, simply because their faceprint was once captured while entering or leaving the country.⁷

In addition to its assault on the First Amendment, the Proposed Rule similarly attacks crucial Fourth Amendment protections. Under the Proposed Rule, without so much as notice or a request for consent, DHS will be recording the faceprints of millions of people and then most troublingly sharing that data as it sees fit. DHS also has a history of improperly informing individuals of their ability to decline consent or opt out of facial recognition programs.⁸ And the Fourth Amendment violations do not end after the faceprint is captured or even after data is shared. Rather DHS’ retention of this personal data will lead to unprecedented law enforcement scrutiny of immigrant communities and other United States residents, and countless Fourth Amendment violations. Similarly, the Proposed Rule — and its data capture absent consent, along with significant impacts of databasing and aggregation — implicates serious due process concerns.⁹

The Proposed Rule gives DHS the unchecked authority to expand facial recognition with very little accountability. By retaining faceprint data for long periods and aggregating it in an expansive databasing system, DHS exponentially magnifies the scope of its intrusion. What started as a pilot has now been expanded to a proposed permanent program without addressing voiced practical, ethical, and legal concerns. The next predictable step will almost inevitably be broader expansion, especially where the language of the Proposed Rule imposes few limits on information gathering and sharing.¹⁰

Facial Recognition Technology Has Been Found to Have Higher Error Rates for People of Color and Other Marginalized Populations

Contrary to DHS’s claims that implementing Facial Recognition Technology will improve accuracy,¹¹ this technology has been shown to be especially infected by bias, making it prone to error when identifying people of color. The troubling impact on already-marginalized communities is all the more concerning when this bias-infected data is placed in the hands of an agency often linked to pervasive racism and bigotry.

These deficiencies are particularly alarming in light of this country’s long history of xenophobia and racism, purportedly in the name of national security.¹² Indeed, numerous recent studies reveal the ways that facial recognition technology perpetuates bias and leads to inaccurate identifications. For instance, The National Institute of Standards and Technology (“NIST”) found that facial recognition systems revealed higher false positive rates for women, particularly Black women¹³ and that depending on the algorithms used, Black and Asian people were 100 times more likely to be misidentified than white men.¹⁴ Facial recognition systems have also been found to demonstrate “demographic differentials” based on age, producing higher errors rates amongst children and the elderly.¹⁵

Separately, when facial recognition systems also include classification algorithms, additional biases arise. Studies show that facial algorithms have higher error rates with transgender and gender non-conforming individuals and are consistently less accurate in identifying the gender of those individuals.¹⁶ In a use case like the Entry/Exit program, where demographic data and not merely recognition results may be populated by the deployed systems, the risks of misclassification, in addition to misidentification, are extreme.

These demographic disparities in operation infringe on the Fourteenth Amendment due process rights of marginalized individuals to be free from unequal and discriminatory treatment. In practice, these disparities will result in disparate treatment.

Given the over policing aimed at communities of color and queer and transgender individuals, and the realties that the criminal legal system and ICE enforcement disproportionately impact these communities, the people BDS serves are part of the communities most likely to be unjustly targeted by these faulty surveillance systems. BDS is particularly concerned about the potential for government mistreatment and discrimination of those already marginalized. A misidentification can lead to increased harassment, additional screenings, pretextual stops, wrongful detentions, and unlawful deportations. These concerns are particularly salient in the context of border screenings because an inaccurate identification or a missed flight as a result of an interrogation can be a matter of life or death.

This concern is especially important given CBP’s and ICE’s track record of discrimination and abuse of marginalized individuals, particularly Black and Brown people as well as those in the LGBT community.¹⁷ Both CBP and ICE have played central roles in family separation, maintained a longstanding practice of detaining people in horrific conditions, and have exhibited a pattern of racial and religious profiling. ICE and CBP have also systematically surveilled, detained, and deported immigrant activists who speak out about unjust immigration policies and practices.¹⁸ People that BDS represents, including Lawful Permanent Residents who have lived here for decades, have been subjected to extensive interrogations and screenings at the border by CBP. Empowering an agency with a history of discriminating against Black and Brown communities with this flawed and intrusive technology is a recipe for human rights and constitutional violations.

Facial Recognition Technology Does Not Serve the Government’s Purported Goals And Exceeds the Authority Delegated To Them By Congress

DHS’s claims that this data collection is intended to promote efficiency and accuracy are undercut by the fact that available data suggests that facial recognition systems do not appreciably improve CBP’s fraud detection.¹⁹ The agency has not provided any clear data to support its efficiency or accuracy assertions. Further, unlike some other available verification techniques, facial recognition technologies have both low- and high- tech vulnerabilities. At its most basic, facial recognition systems will fail in conditions of low lighting or poor camera quality. But facial recognition systems are also susceptible to more sophisticated tricks; for example, they have been easily fooled by morphs: artificial photographs that combine the biometric features of two or more real individuals.²⁰ DHS’ purported goals can clearly be better served through less invasive fraught means. For instance, current fingerprint collection schemes are both acceptably effective for fraud detection and implicate a far less sensitive biometric identification method, while demonstrating none of the known bias risks of facial recognition.

The proposed regulations also exceed DHS’s authority because Congress never intended to authorize DHS to collect faceprints as part of an entry-exit system. While Congress required DHS to establish an entry-exit system that uses biometric data, Congress has never defined biometrics to include the collection of faceprints. The primary statute at issue, the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), 8 U.S.C. § 1365b, was passed in 2004, years before facial recognition technology was available to be tested in airports.²¹ In 2004, Congress did not contemplate, nor did they expressly authorize the use of facial recognition technology. As the Notice of Proposed Rulemaking (“NPRM”) acknowledges, “[t]he facial recognition technology required to reliably implement biometric exit processes into existing traveler flows has not been available until recently”—yet the primary statutory authority that DHS relies upon was enacted in 2004.²² Given the unique privacy concerns that facial recognition software raises as well as its many differences from traditional biometrics (such as fingerprinting), it is up to Congress to decide whether to expand the definition of biometrics to include facial recognition software.

The Government Did Not Provide Sufficient Opportunity for Notice and Comment

Finally, the 30-day comment period set forth in the NPRM issued on February 10, 2021, is inadequate to allow the public a meaningful opportunity to digest, analyze, and comment on a rule that would infringe on individuals’ right to privacy and dramatically expand mass surveillance in the United States.

The initial 30-day comment period in the fall of 2020 coincided with comment periods on a series of last-minute rules that were rushed through by the Trump Administration. Indeed, many of those proposed rules, including this one, interacted to create a complex web of administrative and regulatory law that would dramatically curtail the ability of people in the United States to navigate our immigration system. Because of the significantly abbreviated comment periods, many organizations had to stretch resources to submit comments on rules that implicated their interests or forgo commenting on relevant rules altogether. During the fall of 2020, BDS, for instance, submitted a comment on a closely related proposed rule concerning the use of biometrics²³ a proposed rule overhauling the country’s immigration courts,²⁴ and a proposed rule limiting the availability of employment documents for certain groups.²⁵ Each proposed rule, like the Proposed Rule at issue here, raised significant concerns for BDS and the people we represent, not to mention the broader community. The flurry of rulemaking simply did not afford an adequate opportunity to comment on each proposed rule, much less to provide comprehensive, meaningful analysis of how they interact.

As recently as this Wednesday, March 10, numerous courts have recognized that a 30-day comment period is inadequate to provide the public an opportunity to comment on complex immigration-related rules, particularly in light of the global pandemic and where the proposed rule is part of a “staggered” rulemaking process. See Centro Legal de la Raza v. EOIR, No. 21-cv- 00463-SI, 2021 WL 916804 (N.D. Cal. March 10, 2021). When considering a rule proposed in August 2020, the court noted that a 30-day comment period was too short for a rule that was far more than “a small, discrete set of procedures.” Id. at *24 (citing the NPRM, 85 Fed. Reg. at 81,642). Even more so, the court concluded that a 30-day duration is inadequate in the midst of a global pandemic that “has caused significant and numerous hardships throughout society.” Id. at

*25 (describing hardships that include challenges of remote work environments, closures of government offices, and COVID-19 outbreaks in jails and ICE detention facilities); see also id. at

*25-26 (citing instances where the federal government acknowledged “the difficulties of conducting business during the pandemic”). The inadequacy of the comment period was also exacerbated, the court reasoned, by the “piecemeal method in which the Departments published this NPRM and other related proposed rules.” Id. at 26 (describing “serious concerns” that the “limited” 30-day comment period for a rule, combined with the timing of related rules, “deprived the public of the opportunity to consider how these rules intersected . . . and also raise serious questions about whether the agency ‘meaningfully addressed the intersection of these rules’”) (citation omitted).

The Centro Legal court is only the most recent to denounce a 30-day comment window.

See also, e.g., Pangea Legal Servs. v. DHS, No. 20-cv-7721, 2020 WL 6802474, at *22 (N.D. Cal. Nov. 19, 2020) (finding that 30-days period was particularly inadequate and failed to provide a meaningful opportunity for public comment on a NPRM issued during a “staggered” rule making process alongside other related proposed rules); Immigrant Legal Res. Ctr. v. Wolf, No. 20-cv- 05883-JSW, 2020 WL 5798269, at *14 (N.D. Cal. Sept. 29, 2020) (finding that plaintiffs were likely to succeed on claims that DHS issued a rule in an arbitrary and capricious manner by simultaneously issuing multiple rules on similar and overlapping issues); Casa de Maryland, Inc. v. Wolf, No. 8:20-cv-02118-PX, 2020 WL 5500165, at *26 (D. Md. Sept. 11, 2020) (same); see also Cath. Legal Immigr. Network, Inc. et al., v. Executive Office of Immigration Review et al., No. 1:21-cv-00094 (RJL) (Hearing Tr. at 39) (January 11, 2021, D.D.C.) (admonishing the government, during oral argument for the same 30-day comment period that the Centro Legal court found was insufficient).

The executive branch similarly recognizes that a comment period should normally be 60 days or longer. Executive Order 13563 specifically directs that “[t]o the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days.” Exec. Order 13563, “Improving Regulation and Regulatory Review,” § 2(b) (Jan. 18, 2011); see also Exec. Order 12866, “Regulatory Planning and Review,” § 6(a) (Sept. 30, 1993) (“[I]n most cases [rulemaking] should include a comment period of not less than 60 days.”).

The NPRM for this Proposed Rule is plagued by the same flaws that infected the Centro Legal proposed rule. At 32 pages in the Congressional Record—and 99 pages in PDF—the Proposed Rule is hardly “a small, discrete set of procedures.” The substance of the Proposed Rule similarly supports the longer comment period. The potential impact of mass data collection on millions of people should alone justify a longer comment period, but also the Proposed Rule addresses complex, rapidly evolving technological developments that require extensive research, often beyond the normal scope of practice for organizations and individuals that will be most affected. And the comment period covered the initial days of a new Administration, when advocates, practitioners, and directly impacted people were still determining the impact of numerous related policy developments, including preparing for the implementation of President Biden’s Executive Order on “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” Exec. Order 14012 (Feb. 2, 2021), 86 Fed. Reg. 8,277 (Feb. 5, 2021).

Rather than merely a continuation of the original abbreviated comment period, the February NPRM amounts to another inadequate comment period during an entirely new set of circumstances: less than five months after the original NPRM on this rule, the outlook has changed significantly for immigrants and other marginalized populations that will be disproportionately affected by this rule. Some immigration-related proposed rules issued at the tail-end of the previous Administration have gone into effect, others have been enjoined by federal courts, and still others have been stayed by the Biden Administration. In the face of this shifting landscape, a 30-day comment period to untangle the current status of the regulatory mess created by the previous Administration remains insufficient.

The landscape is further complicated by the government’s staggered rulemaking and a closely-related, but not-yet-in-effect, proposed rule, “Collection and Use of Biometrics by U.S. Citizenship and Immigration Services”, 85 FR 56338, CIS No. 2644-19, USCIS Docket No. USCIS-2019-0007. The two proposed rules overlap in significant ways, most notably that both seek to impose sweeping new biometric requirements and authorize the collection of a vast array of highly personal data, including DNA samples, faceprints and voice prints, from noncitizens. The Proposed Rule provides no guidance or explanation on how the two rules will overlap, leaving commenters to speculate on the possible impact.

Moreover, as the court noted in Central Legal, the curtailed period is especially egregious during the current COVID-19 pandemic that continues to wreak havoc and cause public health and economic devastation. See Central Legal, 2021 WL 916804, at *25-27 (describing the agency’s claim that a 30-day comment period during the pandemic was “wholly divorced from the reality of the COVID-19 pandemic which has caused significant and numerous hardships throughout society.”) Across the country, the physical offices of many legal organizations—including BDS— remain closed, with staff working from home and advising clients, developing case strategy, and litigating cases remotely. The country’s largest immigration court—26 Federal Plaza in New York—has been closed since March 18, 2020. Against this backdrop, DHS is proposing an overhaul of biometric and data collection practices that requires legal organizations to divert resources to carefully review the Proposed Rule and provide meaningful feedback.

BDS has substantive concerns about the majority of the Proposed Rule; however, given the limited time allowed for comments, we have not addressed every troubling proposed regulation or provision. At a minimum, DHS should rescind the Proposed Rule in its entirety. Should the agency seek to re-issue a subsequent rule, it should grant a minimum of a 60-day comment period.

* * *

The Proposed Rule threatens the very fabric of the United States’ Constitution and infringes on one of our most fundamental rights—the right to privacy and anonymity. It relies on a faulty technological system that perpetuates racial bias and discrimination and will further marginalize communities that have been unjustly targeted because of the color of their skin, their gender identity, or their sexual orientation. BDS strongly opposes the Proposed Rule. We request that DHS consider these recommendations and immediately halt the implementation of the Proposed Rule. Please do not hesitate to contact us if you have questions regarding our comments. Thank you for your attention and considering our concerns.

Sincerely,

/s/ Eugenie Montaigne Eugenie Montaigne

Staff Attorney, Civil Rights and Law Reform

/s/ Elizabeth Daniel Vasquez Elizabeth Daniel Vasquez Special Forensic Science Counsel

***

1. While not outright banning the technology, Canada has asked the company to remove the faces of Canadian residents from its database, because “what Clearview does is mass surveillance”— amounting to putting all Canadians “continually in a police lineup.” Kashmir Hill, Clearview AI’s Facial Recognition App Called Illegal in Canada, N.Y. TIMES, (Feb. 3, 2021), https://www.nytimes.com/2021/02/03/technology/clearview-ai-illegal-canada.html. The company has also come under attack in the United States. Just this week, in newly filed litigation in California, community organizations and activists described in detail how the company’s tools are used to effect ICE’s goals. See Renderos, et al. v. Clearview AI, ¶¶ 43-57 (CA Sup. Ct., Alameda Cnty March 9, 2021), https://justfutureslaw.org/wp-...; see also ACLU, et al. v. Clearview AI, No. 2020 CH 04353 (Cir. Ct. Cook Cnty, Ill. May 28, 2020) (alleging that the practices of Clearview AI violate the Illinois Biometric Information Privacy Act).

2. Facial Recognition and Biometric Technology Moratorium Act of 2020, S.4084, 116th Congress (2019-2020)

3. Letter from IBM CEO Arvind Krishna to U.S. Congress (June 8, 2020), https://www.ibm.com/blogs/poli...

4. While the Proposed Rule suggests that U.S. citizens have the right to “opt out” of having their faceprints taken, it lacks any explanation on how people will be informed of that right or any other operational detail. Collection of Biometric Data from Aliens Upon Entry to and Departure From the United States, 85 Fed. Reg. 74162, 74177 (Nov. 19, 2020).

5. The Proposed Rule provides no guidance or explanation of which of DHS’s more than 900 databases will be fed with the collected data. Or whether or how this data will be shared with other governmental or law enforcement agencies.

6. GAO, Facial Recognition: CBP and TSA are Taking Steps to Implement Programs, but CBP Should Address Privacy and System Performance Issues, 52 (Sept. 2020), https://www.gao.gov/assets/gao-20-568.pdf.

7. DHS and its component agencies have a history of conducting intrusive surveillance on protestors, particularly those associated with the Black Lives Matter movement. During summer 2020 demonstrations associated with the Black Lives Matter movement, DHS deployed agents across the United States. Zolan Kanno-Youngs, U.S. Watched George Floyd Protests in 15 Cities Using Aerial Surveillance, N.Y. TIMES, (June 19, 2020), https://www.nytimes.com/2020/06/19/us/politics/george-floyd-protests-surveillance.html. The agency came under fire for its practices, which included abducting demonstrators from the streets of Portland, Oregon, despite lack of probable cause. John Burnett, Border Patrol Response To Portland Unrest: Straying From Mission Or Continuing One? N.P.R., (July 23, 2020) https://www.npr.org/2020/07/23...; See also CBP, CBP Statement on the AMO Unmanned Aircraft System in Minneapolis, (May 29, 2020), https://www.cbp.gov/newsroom/s... (claiming a Predator drone that CBP deployed over Black Lives Matter protestors in Minneapolis in May 2020 “was preparing to provide live video to aid in situational awareness at the request of our federal law enforcement partners in Minneapolis”)

8. Shaw Drake, A Border Officer Told Me I Couldn’t Opt Out of the Face Recognition Scan. They Were Wrong., ACLU Blog (Dec. 5, 2019), https://www.aclu.org/news/immigrants-rights/aborder-officer-told-me-i-couldnt-opt-out-of-the-face-recognition-scan-they-were-wrong.

9. See, e.g., Erin Murphy, Databases, Doctrine, and Constitutional Criminal Procedure, 37 Fordham Urb. L.J. 803 (2010), https://ir.lawnet.fordham.edu/ulj/vol37/iss3/5.

10. Jay Stanley, U.S. Customs and Border Protection’s Airport Face Recognition Program, ACLU, (Feb. 2020) https://www.aclu.org/other/acl...

11. 85 Fed. Reg. 74162, 74163 (Nov. 19, 2020).

12. The Rise In Anti-Asian Attacks During the COVID-19 Pandemic, NPR, (March 10, 2021) (describing a surge in the number of hate crimes and harassment directed towards people of Asian descent since the start of the COVID-19 pandemic) https://www.npr.org/2021/03/10...; Combating Post 9-11 Discriminatory Backlash, U.S.D.O.J, (Aug. 6, 2015), https://www.justice.gov/crt/co... (describing over 800 investigations of post-9/11 violence, threats, and harassment against Arab-Americans, Muslims, Sikhs, south-Asian Americans, and others of perceived Middle Eastern origin)

13. US National Institute of Standards and Technology: 'Face Recognition Vendor Test (FRVT) Part 3: Demographic Effects', Patrick Grother, Mei Ngan and Kayee Hanaoka, NISTIR 8280 (2019): https://nvlpubs.nist.gov/nistp...

14. See Patrick Grother, et al., Face Recognition Vendor Test (FRVT) Part 3: Demographic Effects, NISTR 8280 (Dec. 2019), https://nvlpubs.nist.gov/nistp...; Drew Harwell, Federal Study Confirms Racial Bias of Many Facial-Recognition Systems, Casts Doubt on Their Expanding Use, Wash. Post (Dec. 19, 2019), https://www.washingtonpost.com/technology/2019/12/19/federal-study-confirms-racial-biasmanyfacial-recognitionsystems-casts-doubt-their-expanding-use.

15. Grother, et al., FRVT (Part 3) at 49-52.

16. Morgan Klaus Scheuerman, et al., How Computers See Gender: An Evaluation of Gender Classification in Commercial Facial Analysis and Image Labeling Services, Proceedings of ACM Human-Computer Interaction (Nov. 2019), https://www.morganklaus.com/pd....

17. See, e.g. Katy Murdza and Walter Ewing, The Legacy of Racism within the U.S. Border Patrol, American Immigration Council (2021), https://www.americanimmigratio... within_the_u.s._border_patrol.pdf (describing CBP as an agency permeated by a "culture of racism" that "has persisted throughout its history" with "connections to the white supremacist movement").

18. The Editorial Board, ICE Tried To Deport An Immigration Activist. That May Have Been Unconstitutional. N.Y. TIMES, (April 27, 2019), https://www.nytimes.com/2019/0...

19. See, e.g., GAO Report at 51-54.

20. U. Scherhag, et al., Towards detection of morphed face images in electronic travel documents. 2018 13th IAPR International Workshop on Document Analysis Systems (DAS), Vienna, Austria, 2018, pp. 187-192, https://ieeexplore.ieee.org/document/8395193.

21. 85 Fed. Reg. 74164.

22. 85 Fed. Reg. 74170, 74164.

23. Public Comment of Brooklyn Defender Services on Collection and Use of Biometrics by U.S. Citizenship and Immigration Services, 85 Fed. Reg. 56338, USCIS Docket No. USCIS-21090007-0001 (October 13, 2020) (on file with BDS)

24. Public Comment of Brooklyn Defender Services on Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure 85 Fed. Reg. 52491, EOIR Docket No. 19-0022, (Sept. 25, 2020) (on file with BDS)

25. Public Comment of Brooklyn Defender Services on Employment Authorization for Certain Classes of Aliens With Final Orders of Removal 85 Fed. Reg. 74196, DHS Docket No. USCIS2019-0024 (December 18, 2020) (on file with BDS)