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  From: <patrick.ferguson@columbia.edu>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Mon, 27 Mar 2006 00:14:45 -0500

CPC Paper One: The Cost of Admission

The Cost of Admission:
For reasons of security and efficiency, we will need a digital
photograph, thumbprints, and maybe a retinal scan




We have spoken throughout the semester about the dangers presented
by large government databases. One such database, entitled
US-VISIT, is used by the Department of Homeland Security to collect
biometric identifiers on individuals who cross US borders under the
visa waiver program. On March 20, 2006, DHS noticed a proposed rule
change that will greatly expand both who is required to give up
their biometrics and who is later allowed to access that
information.

Under the umbrella of the PATRIOT Act, US-VISIT has since 2001
pursued two main goals with two corresponding justifications.
First, to track noncitizens, specifically suspected terrorists or
immigration criminals, who enter and exit this country. Second, to
enhance database development, sharing of information, and access to
information. The justifications of “Efficiency and Security After
September 11,” the very title of the section detailing this program
in my immigration law textbook, will not be surprising to anyone in
this class. However, the title begs the question of what security
and efficiency such an invasive system is able to provide.


Will sacrificing your biometrics identity really lead to efficiency?

Many sacrifices of identity are sold on efficiency grounds. We know
that consumers are all too willing to exchange personal information
to increase productivity, and the desire to avoid zip through
airport lines with the touch of a thumbprint has a certain appeal.
The Orlando Airport is one airport where travelers can pay a fee,
hand over their thumbprints and a retinal scan, and avoid airport
security headaches. [1] However, when everyone begins using
biometric identification the lines may end up being just as long as
they are now. (By the end of the year, when all British residents
have biometric passports[2], we will see how much efficiency it
truly provides).

The US-VISIT system was designed to increase processing speed. Close
to 20 million non-immigrant visitors enter the US every year and
waive their rights to a long-term visa in exchange for expedited
processing. Depending upon what country they are from, noncitizens
can opt in or out of the system. However, the proposed US-VISIT
rule change greatly expands the category of people who are required
to submit their biometrics. The system will now collect, at a
minimum two digital thumbs prints and headshot, from “any
individual who applies for any form of automated or other expedited
inspection for verifying eligibility to cross the borders.” [3] In
addition, anyone who has access to a “sterile area” of an airport
(baggage handlers, security officers, etc.) is also required to
register.

This categorical expansion effectively eliminates the ability to opt
out of the system. While an international business traveler could
theoretically still apply through her local consulate for a
business visa, the administrative hassle often takes months. The
visa waiver program is the de facto choice for anyone entering the
US for short visit. Most immigrants will not be deterred by the
loss of privacy because the potential to earn a better living in
the US is just too great. Visitors for pleasure may also not be
dissuaded, but it could certainly be good reason to vacation in the
Caribbean instead.


What about bureaucratic efficiency?

The DHS is under economic and political pressure to reduce wait
times for admission into the US and streamline the immigration
controls. While individuals now factor in long wait times for
airport security, the problem will greatly expand when the US-VISIT
system scales up to land border crossings. Recently, DHS has been
heavily criticized by the both the 9/11 Commission and the
Government Accountability Office for inefficient border security
practices. [4] In February, the GAO shut down a similar DHS
initiative to monitor border crossings with cameras and scanners.
They also noted concern that the US-VISIT system would be deployed
without adequate testing.

The DHS addresses this system efficiency concern in the new proposed
US-VISIT rules. The proposed DHS rule makes it clear that “all or a
portion of the records or information contained in this system may
be disclosed outside DHS…to contractors, grantees, experts,
consultants, [and] students.” [5] The proposed rule change comes
just after a large consolidation in the private biometric
technology sector. Viisage Technology and Identix Technologies, two
of Robert O’Harrow’s big culprits, agreed to a $770 million merger
in January. [6] Just last week the new company acquired
SecuriMetrics, an iris recognition technology company, making it
the one-stop-shop for all the government’s needs. There are many
private companies still competing for lucrative biometrics
government contracts and access to the US-VISIT system only seems
to get easier.


Does the system improve national security?

In terms of security, US-VISIT has been consistently criticized.
Given the technological sophistication of terrorists and the porous
US borders, it is unlikely to be effective as a terrorist screening
program.  “Since January 2004, it has caught a paltry 1,000
immigration cheats and crooks (no terrorists, though), at a cost of
$15 million per apprehension.” [7] Technological advancements will
undoubtedly increase the efficiency of the US-VISIT system, in
terms of finding immigration criminals and also reducing
immigration bureaucracy. However, this heavy handed collection
method slowly degrades reasonable expectations of personal privacy
and expends an enormous amount of resources.


Do visitors have a right to refuse?

While the US-VISIT system is technically optional, it may soon be
mandatory. It is not clear whether mandatory collection of the
biometric identification of noncitizens violates the fourth
amendment. DHS finds support in two cases dealing with the ability
of government to command voice exemplars from a citizen appearing
before a grand jury and the ability of the police to draw blood of
a citizen arrested for drunk driving. [8] A vague notion of
inherent power in the PATRIOT Act is also seen throughout the
US-VISIT literature. [9] While both Kyllo and the recent Georgia
case do provide some hope for the power of a citizen to resist
search and seizure in his home, border control is an entirely
different setting. Since immigration issues are decidedly civil
matters, it very doubtful that a noncitizen will be granted any
protection under the fourth.

As the US-VISIT expands in scope, it is worth questioning what the
reasons for such an invasive system truly are. Unfortunately for
the time being, it appears that noncitizens have no choice but to
permanently surrender their identities to the US government.




---Patrick Ferguson---





[1] http://www.boingboing.net/2005/08/01/florida airport sell.html

[2]
http://news.com.com/U.K.+e-passports+start+their+travels/2100-7348 3-6041491.html

[3] Transportation Security Administration Privacy Act; systems of
records. Federal Register: (March 20, 2006) Volume 71, Number 53,
Page 13987-13989

[4]
http://news.com.com/911+panel+faults+government+on+cybersecurity/2100-7348 3-5984743.html

[5] Transportation Security Administration Privacy Act; systems of
records. Federal Register: (March 20, 2006) Volume 71, Number 53,
Page 13987-13989

[6] http://www.eweek.com/article2/0,1895,1910458,00.asp

[7] http://www.boingboing.net/2006/01/31/usvisit immigration .html

[8] Schmerber v.CA.,384 U.S. 757, 1966; U.S. v Dionisio, 410 U.S. 1,
1973

[9] For example,
http://www.biometricscatalog.org/biometrics/FAQDec2005.pdf








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