Experiencing the surveillance state

Flying out of Washington National Airport in February, I saw a special entry line for the CLEAR facial scan program that enables people who pay $189 a year to skip TSA lines. TSA promises that its new airport regime will respect Americans’ privacy. Fat chance: TSA previously promised no traveler would be delayed more than 10 minutes at TSA checkpoints.

I stood and watched semi-frazzled travelers enter a roped-off turf to get TSA approval for their visage.

A skinny young woman with a CLEAR t-shirt and a clipboard was standing guard at the entrance of the biometric site. She looked like a cherub with long straight red hair and a welcoming smile.

“How soon will they be making the biometric checks mandatory?” I asked her.

“I don’t know anything about that,” she replied, as if I’d asked about the surface temperature of the planet Venus.

“Do people ever complain about having to do the biometric checks?

“No, this is voluntary,” she replied with a smile wider than a Kamala Harris grimace.

She was a good Washingtonian: She could never imagine any federal agency flogging the hell out of the Constitution. I considered peppering her with another half dozen questions but wanted to keep my sarcasm fresh for dealing with TSA agents. My hunch was that the redheaded cherub was not a regular reader of the Future of Freedom Foundation website.

TSA is one of the most secretive domestic agencies.

In July, the Washington Post reported that TSA agents at National Airport threatened long delays for any passenger who refused to be photographed, including U.S. Sen. Jeff Merkley (D-Ore.). Merkley noted that TSA falsely claimed that there were signs at National Airport notifying people that the facial scans are optional.

“Trust us” is the TSA mantra for the new program. TSA is one of the most secretive domestic agencies and is notoriously noncompliant with the Freedom of Information Act. Washington Post reporter Geoffrey Fowler notes that TSA has refused to disclose data on its new system: “So, we really have to at this point just take their word that it is a more accurate than people and speeding things up.” That includes failing to disclose “how often its system falsely identifies people, through incorrect positive or negative matches.”

What could possibly go wrong?

TSA will be relying on photo-identification systems with misidentification rates up to 100 times higher for blacks and Hispanics. When the ACLU tested facial-recognition systems in 2018 by running photos of members of Congress through a massive data of police mug shots, 28 lawmakers “were incorrectly matched to people charged with a crime.” Actually, the number of congressmen who have committed criminal offenses is probably far higher, but the matches to those specific mug shots were erroneous.

Nor is there any reason to expect the TSA to keep its personal data on Americans safe from pillaging. Federal records of citizens’ photos were already filched in a 2019 “malicious cyberattack.”

TSA is already partnering with the Customs and Border Patrol agency to compel any American entering or leaving the nation to submit to being photographed for their database. That Trump administration initiative is named “Biometric Entry/Exit” — a euphemism for “Nobody Leaves Without Uncle Sam’s Permission.” Since the program will rely on computer databases and facial scans instead of a Berlin Wall, there is nothing to fear. “Biometric Entry/Exit” sets a precedent for federal controls over Americans’ movement inside the United States.

TSA will be capitalizing on vast federal poaching of state and local records, as well as online records. As Mike Maharrey of the Tenth Amendment Center noted, “A 2019 report revealed that the federal government has turned state drivers’ license photos into a giant facial recognition database, putting virtually every driver in America in a perpetual electronic police lineup.” Techdirt reported, “Federal investigators have turned state Department of Motor Vehicles databases into the bedrock of an unprecedented surveillance infrastructure.” The FBI is regularly tapping into databases with more than 600 million facial photos.

Pushing back against TSA

Five U.S. senators are seeking to slow the TSA facial scan stampede. In a letter to TSA Administrator David Pekoske in February, senators Ed Markey (D-Mass.), Jeff Merkley (D-Ore.), Cory Booker (D-N.J.), Elizabeth Warren (D-Mass.), and Bernie Sanders (I-Vt.) called for TSA to halt its facial-scan program. The senators warned that “American’s civil rights are under threat when the government deploys this technology on a mass scale, without sufficient evidence that the technology is effective on people of color and does not violate American’s right to privacy.”

The senators pressured TSA to provide the data by which Congress and private citizens could judge the program:

Please provide data on the accuracy and volume of TSA’s facial recognition technology program from 2020 to 2022 broken down by race, ethnicity, and gender that includes:

• the rate of false positives and negatives produced;
• the total number of travelers who had their face scanned by TSA;
• the total number of travelers who opted out;
• the total number of cases where TSA stored its facial scans, instead of immediately deleting.

How are travelers notified of their right to opt-out of
facial recognition? What are the effects on a traveler who chooses to opt-out of facial recognition?

Under TSA’s current system, do travelers who choose to opt-out face any additional consequences or additional screenings, pat-downs, interrogations, or even detention, beyond what they would have encountered at a non-facial- recognition airport?

What training measures does TSA currently mandate for staff to regarding travelers who choose to opt-out of facial recognition technology?

Has TSA ever shared biometric data with other government agencies? If so, which agencies and for what purposes?

What measures is TSA taking to protect biometric data from cyberattacks or any other form of unauthorized distribution or release? How does TSA ensure the security of Americans’ data that third-parties have access to? Is TSA aware of any breaches of travelers’ biometric data collected at US airports? If so, please detail all such breaches.

As of October 2023, TSA has provided little or no information in response to the senators’ letter. This is typical of TSA’s contempt for congressional oversight — a consistent disgrace to the Constitution since the agency was created in 2002.

Jeramie D. Scott, director of the Electronic Privacy Information Center’s Project on Surveillance Oversight, followed up the senators’ warning with his own analysis on why TSA’s “Facial Recognition is More Dangerous Than You Think.” Scott stressed that “any current claims by TSA about how they are protecting privacy and the voluntariness of the program ring hollow in light of the fact that there are no meaningful restrictions on how TSA implements the use of facial recognition technology.”

Scott lays out how the TSA program could be another step toward bureaucratic serfdom due to

the very real possibility that our face eventually becomes our default ID and creates a de facto national ID controlled by the government…. Using our faces as our ID means the infrastructure for facial recognition will become ubiquitous and centralized and the temptation to expand the use of such an infrastructure will likely be too great to resist, resulting in mission creep. A national ID based on face verification will be disastrous for our privacy, civil liberties, and civil rights. It would destroy anonymity and put the control of identification in the hands of the government and further exacerbate the imbalance of power between the government and the people…. There is a reason facial recognition has become ubiquitous in less democratic countries — facial recognition is an ideal tool for oppression by an authoritarian or would-be authoritarian government.

“Mission creep” will likely follow the rollout of TSA’s facial round-up. The ACLU warns that “there will be enormous pressure to turn those [TSA facial] checkpoints into broader law enforcement checkpoints where people are subject to watchlist, criminal, and immigration checks.” There are reports that the CIA and FBI “already want to leverage TSA checkpoints for law enforcement and intelligence purpose … pressure will build to expand it further and try to identify everyone from parole violators to deadbeat dads,” according to an ACLU white paper.

The Supreme Court ruled in a 2018 case: “A person does not surrender all Fourth Amendment protection by venturing in the public sphere,” but the proliferation of federal facial scanning makes a mockery of the Fourth Amendment’s prohibition of warrantless unreasonable searches. As the ACLU’s Jay Stanley wrote: “Travelers, including U.S. citizens, should not have to submit to invasive biometric scans simply as a condition of exercising their constitutional right to travel.”

Giving an inch, taking a mile

TSA’s new regime is mushrooming at the same time that federal law enforcement is crusading to vastly expand facial surveillance. The FBI’s Kimberly Del Greco told Congress that facial recognition technology is critical “to preserve our nation’s freedoms, ensure our liberties are protected, and preserve our security.” Relying on the FBI for a character witness for preserving freedom should set off all the civil liberties alarms. As the Electronic Privacy Information Center warned, “An individual’s ability to control access to his or her identity, including determining when to reveal it, is an essential aspect of personal security and privacy that biometric identifiers erode.”

The TSA scanning system could be a big step toward a Chinese-style “social credit” system that could restrict travel by people the government despises. Will the new facial-recognition software be programmed to trigger an alert for anyone who radiates disdain for the TSA? Will a secret scoring system classify scruffy beards as a warning sign of “domestic extremist?” Will folks who look too ornery for their own good be taken behind closed doors for a TSA “enhanced pat-down” that exhausts their annual profanity quota?

The only way to justify TSA’s facial surveillance regime is to presume that secretive federal agencies never abuse the powers they capture. In other words, it requires disregarding everything that happened in Washington after the 9/11 attacks. Will the database the TSA helps compile be used to target anyone who attends a protest that politicians subsequently label as seditious, extremist, or unpatriotic?

Dr. Joy Buolamwini, founder of the Algorithmic Justice League, warned: “The government has already made it very clear that the path and the roadmap is to make what we are seeing as a trial or a pilot mandatory…. This is the time to resist.” But the experience of the decade since Edward Snowden began exposing the Deep State illustrates how federal intrusions are extremely difficult to slow or reverse.

Rather than a new system of retina scans, we should abolish TSA. Despite squeezing millions of butts and boobs, TSA has never caught a real terrorist. By treating most Americans like suicide-bombers-in-waiting, TSA makes traveling vexing without making it safer. For 20 years, Washington bureaucrats and political appointees have promised to reform TSA so that it will cease being a farce and a menace. After pointlessly groping millions of Americans, TSA has no excuse for groping millions more.

This article was originally published in the January 2024 edition of Future of Freedom.