Panel: Biometrics in Immigration

Panel Transcript: Biometrics in Immigration

Promoting National Security and Community Safety

By Jessica M. Vaughan and Dan Cadmanon October 13, 2020
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Biometrics in Immigration: Promoting National Security and Community Safety
Event Summary

The Center for Immigration Studies hosted a conversation on October 12 highlighting the Center’s new report on the value of biometrics in immigration enforcement and how that relates to national security and public safety. The starting point for conversation was the Department of Homeland Security’s (DHS) proposed regulations on the collection and retention of various forms of biometric data.
Participants

Jessica Vaughan
Director of Policy Studies
Center for Immigration Studies
Dan Cadman
Fellow
Center for Immigration Studies

JESSICA M. VAUGHAN: Good morning, and welcome to our panel today from the Center for Immigration Studies on biometrics and immigration: promoting national security and the integrity of our immigration system and public safety.
I’m here today with the Center for Immigration Studies Research Fellow Dan Cadman, who is a retired career immigration official with expertise in public safety and national security. And his work is voluminous and available on the Center’s website with all of our work at CIS.org.
The launching point for our discussion today is a new proposed regulation from the Trump administration to update our – the collection of biometrics in immigration, and we’re going to discuss that. But we’re going to have a more general discussion on the role of biometrics in immigration, not just in operations but generally in maintaining the integrity of our immigration system, which is important to promoting public confidence in our immigration system when people know that we are able to detect fraud and people who should be disqualified from obtaining benefits and all the ways that biometrics are used in our system and how they can be improved on.
So please join me in welcoming Dan Cadman. And before we get started on our discussion, I wanted to just point out a couple of things. If you have questions that you’d like to submit – that we’re going to try to get to at the end of our discussion – you can submit them two ways, either on our Twitter feed at @CIS_org – O-R-G – or through our media director, and her email address is mrt@cis.org. And those will be forwarded to us, and we’ll try to get to as many questions as we can after the discussion.
So let’s get started here. Let’s talk about the rule, first of all, Dan, and the context of it. And I want to talk about, first of all, what we mean by biometrics. What are we talking about, exactly, when we think about biometrics and how they’re used in our immigration system?
DAN CADMAN: At the base level, at the broadest level, when we are talking about biometrics we’re talking about personally identifiable information but not, for instance, something such as your date and place of birth. We’re talking about things that are scientifically identifiable and verifiable and unique to you, and there are a whole range of things that fit into that category.
Fingerprints. And that’s really the oldest of the biometrics in use right now, although at one time it was considered startling and suspect.
Palm prints. And just as a footnote, I myself in using the health system in my area, when I go to the doctor’s office or to the hospital, they take a palm print from me to register me in promptly because that palm print is of record with my data attached to it. So palm prints.
You have photographs. And photographs we usually think of as being full facial, but photographs can also be of your tattoos, your marks, your scars. And the subset of photographs is facial recognition.
Another biometric is voiceprints, because each individuals’ voice is unique. The way your vocal cords work differ from one person to the next.
Iris scans, also unique. So an iris scan is not only a biometric, but is coming more into use as science advances and makes it more within the grasp of agencies and corporations at an affordable level.
And then, finally, DNA, the last frontier so to speak, or at least as we now know it – DNA being those things that make you you.
So those are the things that are encompassed with the DHS rule. It’s really a very comprehensive rule, and I think given the seriousness of the subject matter it ought have been.
MS. VAUGHAN: Mmm hmm, yeah. Well, it’s not surprising to hear you talk about what you use within your health-care system and that the federal government is probably lagging behind much of the rest of the – or the worlds in which we go about our lives. It seems that the federal government is never really on the cutting edge of using these technologies, at least certainly not the immigration system, so it is about time that we upgrade.
And you know, of course, technology is always improving and expanding, and a lot of the things that, you know, we didn’t think possible 20 or even 10 years ago are now becoming much more feasible for the federal government to use, particularly iris scans is one. You know, for a long time, as you know, it was just based on fingerprints. But now there are all these other types of biometrics that can be used, and some are better for certain types of applications than others and more usable.
So can you talk a little bit about how biometrics are used in the immigration system in particular, and – in both the administration of immigration law and the adjudication of benefits, but also in the immigration enforcement context?
MR. CADMAN: Yes. Let me digress just for a moment, though, and speak back to what you were saying about the federal government is almost never on the cutting edge. And that’s true, and I think there’s probably a couple of reasons for it.
And the first is that government rules touching upon contracts and development are really so incredibly onerous and burdensome, and with some reason because you want to make sure that when taxpayers’ money is spent it’s spent wisely and not thrown frivolously. But that makes it much more easy for private industry to look at cutting-edge ways to find things like iris print – iris-scan methodologies. The government is never going to be on the cutting edge of that stuff.
But I think the other reason is because in our country we value privacy. And so the government tiptoes very slowly behind private industry and waits for a certain level of acceptance before it wades in because Americans, understandably and rightly, value their privacy. But there is a point at which it is absolutely antithetical to the public interest for the government not to start using some of the technologies.
I mean, we often hear in various scenarios follow the science. Well, that’s what DHS is doing with this regulation, it’s following the science. And the science of collecting iris scans and collecting DNA and collecting palm prints and doing all of these things, and facial recognition, have – they’re not at the end of the road by any means, but they are so far advanced from where they were that it would be remiss for the government not to start doing these things in the immigration context.
And that gets to the second question you asked, which is what is the point of it. And the point of it is that granting any immigration benefit should always be done with the idea of integrity in mind. We are allowing someone to enter our country and in many instances to remain permanently and to live and to work here. And we need to be sure that those individuals are who they say they are, that they’re of good moral character, that they don’t have backgrounds involving crimes or transnational gangs or alien smuggling or trafficking in humans or drug trafficking; and equally importantly, that they are not human-rights abusers, that they’re not war criminals. And we have had, you know over the decades many, many, many instances of catching up after the fact to people who have been engaged in all of these things, and it doesn’t make sense to stay in that kind of dead-end environment when we have these ways now in which we can intercept before the benefit is granted because it’s always easier not to grant the benefit than to try and claw it back through the courts.
MS. VAUGHAN: Right, right. And we have to remember, too, that two-thirds of green cards that are awarded each year go to people on the basis of a family relationship. And so one of the things that people have to establish is that they are actually related to the person who’s sponsoring them, so that’s – you know, it’s not always just a matter of finding someone’s criminal record but determining if they are, in fact, a brother or a sister or a parent or a child. So not only in the green-card context, but as we’ll discuss later in other contexts as well. So –
MR. CADMAN: That is so absolutely true. And you know, there is a long and sadly dishonorable history of familial fraud where immigration benefits are concerned, going clear back into the late 1800s. A lot of countries used family registers to record the members of the family, and those family registers became the basis for many adjudications as to who could come to the United States. And unfortunately a couple of things happened in those cases, and one was that if some member of your family died you could slot somebody – an imposter – into that register under that name for a fee. And so people paid to be put on family registers to come to the United States.
And of course, the other thing is that because a family register is just a piece of paper, it can be fabricated or the people who issue them can be corrupted. And so when we were relying for many, many years on family registers and that kind of vital statistic – that didn’t even have watermarks or the kinds of things that we use to secure paper these days – it was a guarantee that fraud would occur. And then, you know, of course the next step is safeguarding the pieces of paper. And now, you know, we move to blood groups to try and figure out whether the blood group is even compatible with the family.
And then very clearly the next step is DNA. If you’re related to me – not by marriage, but if you are my kith and kin by blood – it’ll show up or not show up, as the case may be, in the DNA. And this is something that DHS should be doing where there is any question whatsoever of familial relationships, and it’s particularly important when you’re talking about adults and minor children.
MS. VAUGHAN: Mmm hmm, yes. So I can think of a few instances over my career when there were some more or less watershed programs for the immigration agency, first INS and then later the agencies under the umbrella of DHS, where they implemented major systemic-level collections of biometrics to improve the integrity of our immigration system. I mean, I remember when the Border Patrol started collecting fingerprints of everyone arrested, and that was an impetus that came through legislation. A lot of people couldn’t believe that it wasn’t done at the time. That was as recently as the ’90s. And then the beginnings of our biometric entry/exit system, the first step of that was implemented in January 2004 with the US-VISIT program, where people were required to submit fingerprints at the time of applying for a visa and then also provide a quick fingerprint collection at the time that they arrived in the United States at an airport or seaport so that you could determine if that person was really the person to whom the visa was issued. And then in the late 2000s, around 2008 to 2012, ICE implemented the Secure Communities Program, which really I think it’s fair to say revolutionized the way they did their work because they were able to share – to get access to the fingerprints collected through the nation’s criminal justice system and match them up with Homeland Security records to find out when a non-citizen had been arrested and to confirm that identity.
So can you talk a little bit about – I mean, it seems to me that our government never acts until there’s been some kind of disaster or horrific case that spurs them to action. Can you talk about some of the instances that motivated the immigration agencies to do more with biometrics?
MR. CADMAN: Well, I can. And you know, we briefly talked about how fingerprints are the oldest of the biometrics. One of the things that has happened with fingerprints is that they are now digitized. And one of the – one of the benefits of digitizing the fingerprints is that instead of rolling your finger with ink on a paper card, mailing that card off to some distant location, and then having a fingerprint examiner put an eyeglass to his eye to check for the loops and whorls, those days are gone. You can put those finger marks on a – on a(n) electronic plate which gathers it, shoots it off into the ether, and is received on the other end, providing for near-real-time recognition of fingerprint matches. And that’s what Secure Communities was able to do, to allow Immigration and Customs Enforcement to recognize that there was someone in their database as an immigration violator who had been arrested by state or local police, and therefore in whom they would have an interest in taking custody of when their most recent criminal proceedings were done.
But going back a step behind that to what you were talking about with the Border Patrol taking fingerprints, unfortunately, it’s true that for a very long period of time, shockingly, a lot of the apprehensions by the Border Patrol were kind of a throwing water back into the sea exercise. And as a consequence, they would quickly process people, give them voluntary departure, put them on a bus, and send them back to Mexico. When they started collecting fingerprints, they were overly sensitive about the privacy dimensions of it and they were kept in a stovepiped system that no one else had any access to.
And what happened were two different and very shocking cases where it came out that individuals – murders in each case – were of record with the Border Patrol, and had the Border Patrol’s system been integrated with other systems – meaning primarily interacting through the FBI’s National Crime Information Center computer – those individuals would have been detected and taken off the street much more quickly.
And one of them was a guy named Resendez-Ramirez, who was known as the railroad murder, and he was a vagabond. He was what we might have called a hobo many decades ago, only he wasn’t a benign hobo. He was a fellow that rolled – you know, rolled along the country, riding the rails illegally, and killing people throughout the United States. And the Border Patrol picked him up at least twice, maybe three times. And this was at the juncture where they were taking prints, but no one knew that those prints matched with latents that had been taken from crime scenes. But it finally did come out, and of course there was a hue and cry.
And he wasn’t the only case. There was also a fellow who was illegally in the United States whose last name was Batres, and Batres committed the horrible crimes of raping, mutilating, and murdering two nuns. He, too, was kept in that stovepiped system, and it didn’t come out until later. And of course, after the fact the embarrassment of that and the recognition that sometimes privacy has to be trumped with public safety and common sense, there was an integration of fingerprinting systems so that you would be able to get these bounce-backs saying this guy is suspected in a – in a crime or wanted for something. And that’s at it should be because that’s where, you know, the intersection of privacy and national security and public safety occur.
And the same thing is true in the context of admissions to the United States. The problem there is a slightly different one, and that is there are so many tens of millions of visitors to the United States each year, most of them through airports of entry, that when they are queuing up to get in and through after having presented their documents and speaking with the Customs and Border Protection inspector, there’s a limited amount of time to figure out who these people are. And while we have things now that try and help make that a better process, such as pre-screening, et cetera, the point still remains that it is a very awkward thing to be taking fingerprints of those people even in a near-real-time environment at a port of entry and trying to wait for the kickbacks.
And this is where iris scans have a real potential because the iris scans could theoretically be taken before they’ve even queued up in front of each of the inspector’s booths so that by the time that individual arrives there is some indicator of who this person is. And although, obviously, at first instance there will not be any database or much of a database to ping against, over the course of time we can count on iris-scan databases being as robust as they are for fingerprints, whether that is Homeland Security’s own iris-scan database or people who have been past violators who are now trying to come in again or some other agency’s iris-scan database that may show that the individual is not of good moral character, is excludable from the United States, and should be denied admission.
MS. VAUGHAN: Mmm hmm. Well, the matter of response time is important, and I think this is a good time to bring up that there are two kinds of matching exercises that you can do with biometric data. And one of them is, as you were talking about, you know, to check someone’s criminal record; in other words, to take those fingerprints and match them against the FBI’s records or immigration records or Interpol or something like that. But the other real value for the immigration application is simply to authenticate somebody’s identity, to know that the person in front of you asking for entry is the same person that that visa was issued to and the same person that, you know, may match up with some other records – just, you know, fixing that identity. And those do not take a lot of time. It’s actually possible to do those. You know, they call that a one-to-one comparison rather than a one-to-many. It’s not searching – the system’s not searching a big database; it’s just saying, yeah, this print matches the one that was given two months ago in London or wherever.
And that’s – that was a value of US-VISIT. I think it’s fair to say that the immigration agencies were really surprised when US-VISIT started up and running in 2004 how many imposters had been getting through before that they were not able to detect because the quality of, you know, photo substituting in passports or visas was really quite good in some situations, especially if you’re dealing with a criminal that has access to sophisticated document-altering technology or abilities. And you know, that’s a very useful technology and really – the big problem is, of course, is that it hasn’t been extended to the land border or really made more universal in our – in our entry/exit systems. Go ahead.
MR. CADMAN: Absolutely. And I think that that has got to be done, and it’s unfortunate that there has been legislation – repeated legislation over the years to provide for universal coverage of people’s entry/exits and yet we don’t have a good, robust system. But using some of these alternative biometric technologies provides a real opportunity to fill those gaps in ways that haven’t been done.
And you’ve really put your finger on it when you talk about the absolute need to make sure there is a one-to-one relationship of the person before you with the person who is applying for a benefit. And imposters have been a problem throughout the history of immigration, and that is particularly concerning not just at the ports of entry but for people seeking benefits that will last a much more significant period of time, to allow them to live either for years or in perpetuity in the United States.
And one of the things that we noted and have commented on in the DHS regulation that I think ties these two things together is the DHS regulation talks in great length about the need for these biometrics where applications and petitions for immigration benefits are concerned, and yet at no point does it explicitly say application for admission to the United States for entry is in and of itself a benefit. And that’s absolutely critical because that is one of the cornerstones upon which everything operates, who steps in front of the inspector to get past the inspector into the interior of the United States. If there is an individual that is not who they’re supposed to be, that’s the best place to catch them.
MS. VAUGHAN: Right. Well, let’s talk about what this proposed rule actually seeks to accomplish, what is it changing. Can you just go through that quickly? And I want to add for our viewers that the comment period for this proposed regulation ends today, so if there are those of you out there that would like to submit comments on this proposed regulation you may do so through today, and those comments will be read and considered as we go forward to implementing what we hope will be a good final rule. So tell us what the Trump administration is proposing, Dan.
MR. CADMAN: What DHS is doing is incorporating all of these different mechanisms, these modes of collecting biometrics, all of the things that I discussed – the fingerprints, palm prints, iris scans, all of that – and creating what they’re calling a person-centric system that can track an individual’s progress through the immigration system all the way up to naturalization by periodically capturing some significant biometric or another, DNA being probably as the rule is written the least-used and only in applications where there is a need to establish familial relationships. There are some problems with that, as well, that we commented upon, but generally that’s the notion.
And this not only promotes ensuring that at no point does an imposter sneak into the system, but it also allows Homeland Security periodically to re-vet that person. For instance, it’s not a secret that over the past few years people who were lawfully admitted to the United States as refugees or asylees or green-card holders have proven themselves over time to have connections to terrorist organizations or they radicalized after they’ve arrived. And re-vetting allows the government to take another look and another look through discrete periods of time to see whether the person’s circumstances have changed, whether their mindset has changed. That allows the government to scrutinize whether or not they are still entitled to live and remain in the United States, or whether there is a basis on which the government should be acting to strip them of their residence or to initiate a removal action, or at minimum to deny them naturalization if there are serious grounds to believe that they are not entitled to citizenship.
MS. VAUGHAN: Yeah. That’s important, and you know, we can all think of cases that have happened over the years where that would have been warranted.
MR. CADMAN: Yes. Yes.
MS. VAUGHAN: We don’t like to know too late that someone has become radicalized and a danger to us.
MR. CADMAN: Well, absolutely. And the Boston Marathon bombers are a prime example of catching up to things after the fact, as were the unfortunate incidents in San Bernardino, California, and at the Pulse nightclub in Orlando. Those are all instances where there were indicia but the vetting was not as robust as it ought to have been, and perhaps it ought to have been caught sooner.
MS. VAUGHAN: Mmm hmm. So what else is being proposed? It’s a pretty lengthy regulation. Tell us – tell us some other things that will be updated through this.
MR. CADMAN: Well, let’s talk specifically, for instance, about the DNA. This is an offshoot of applications and petitions. But the fact is that we know that over the past several years family units have appeared at the U.S. southern border in large numbers, and because of a variety of policy decisions and court decisions it has almost been, you know, olly olly in come free. If you can establish that you’re an adult in the company of a – of a minor child there’s a very good chance you’re going to be released into the United States, and that has resulted in, you know, what you might fairly call rent-a-child. Someone who has no relationship to the child rents the kid, so to speak – pays a fee to bring the kid across the border with him or her to pretend to be part of a family unit, and once having made their way into the interior often that child is the child of someone who was already here illegally. They move the child along and then they move into the woodwork. Rapid DNA testing is one of the ready solutions to intercept that kind of fraud right at the beginning, and that’s critically important because you can’t rely on anyone who is willing to rent a child for that purpose being of good moral character.
MS. VAUGHAN: (Laughs.)
MR. CADMAN: There is a very good chance that those kids may be trafficked into things that they should be nowhere near, whether that’s peonage or abuse.
And you know, there was a very interesting pilot test done on the border – (clears throat) – excuse me – called Operation (Double) Helix, and it was undertaken from July to November I think in 2018. But they pilot-tested this rapid DNA on 1,747 so-called family units, and of those 432 were shown to be fraudulent. That’s a – that’s a fraud rate of over 20 percent, and that should concern everyone that children are being put into that kind of situation simply because policies and court orders have been issued that are ironically and theoretically in the interests of the child. That is not in the interest of the child. DNA is a very obvious solution to that problem.
But one of the other concerns that I have is that the rule as written says that the DNA will be retained for a limited period of time, and it seems to me that if that’s true that’s completely contrary to the notion of a person-centric system. If you’re going to take biometrics and then discard them, I don’t understand how you could have a baseline over any period of time that was worthwhile.
MS. VAUGHAN: Right, especially because if they’re taking from people who are entering as children –
MR. CADMAN: Yes.
MS. VAUGHAN: My understanding is that currently, even using fingerprints, they are not collected for anyone under the age of 14. Is that right?
MR. CADMAN: That is right and they’re going to change that.
MS. VAUGHAN: Yeah.
MR. CADMAN: They’re changing that so as to be able to capture whatever biometrics they think are important and necessary to identify that child’s – who that child is, and that will follow that child through the course of his or her entire immigration history. And that’s completely, I think, not only legitimate but important and in the interest of the child. So disposing of any kind of biometric is not the answer. Safeguarding the information is the answer. Privacy is important, but it doesn’t make sense to say that you’re going to conduct a system that is person-centric and engages in reiterative vetting and safeguards when you ditch the information. It doesn’t – that’s not logical.
MS. VAUGHAN: Mmm hmm. So basically, they’re expanding the population of people from whom biometrics can be collected –
MR. CADMAN: Yes.
MS. VAUGHAN: – which is helpful on many levels, and they are expanding the types of biometrics that be collected, right?
MR. CADMAN: Yes. Yes, and it’s important to note that the expansion of those biometrics correlates almost exactly with the kinds of biometrics that the FBI is now capturing in a variety of its systems. And that then allows, just as is done with fingerprints, for match to match between DHS systems and FBI systems where there is any doubt whatsoever about an individual’s relationship with the criminal justice system. And as the FBI goes into what’s called Next Generation Initiative (sic; Identification) – NGI – it is even going to include some civil authorities.
One of the other things that the FBI holds the gateway to, if you will – and it’s an important database – is a database of biometrics, both active and latent, that have been taken by U.S. military authorities abroad relating to terrorist and national-security threats. And so if DHS makes the mistake of completely stovepiping its systems and not moving these biometrics in whatever form they’re captured into the FBI’s system, there is a very good possibility that we may have in the future another Resendez-Ramirez or another Batres case, and maybe it won’t relate to fingerprints this time. Maybe it’ll relate to DNA of, you know, a suspect taken at a crime scene of a heinous crime, and if DHS takes a DNA sample and it is never bounced against the FBI’s NDIS/CODIS system, which is their DNA database, DHS may inadvertently be granting a benefit of some kind to someone whose DNA was found at the site of a multiple murder or whatever. And that would be a huge, huge mistake.
MS. VAUGHAN: Yeah. So we, you know, think that this rule is a real important step forward, and your report on this rule and biometrics is up on our website at CIS.org for people to refer to. But I’d like to also talk about, in addition to the benefits, what you see as some areas that really could have been strengthened in this rule and perhaps still need to be done. Can you point out a couple?
MR. CADMAN: Well, yeah. You know, this actually is, in a certain sense, a benefit, but one of the – one of the things that I caught in the rule that doesn’t at least make sense to me – and I’ve commented on it – is they are proposing not to capture any biometrics on guardians of minor children. And I think that is –
MS. VAUGHAN: Why is that important?
MR. CADMAN: Well, because if you’re going to turn an alien minor into the care of someone, that minor is in your custody. And if you give that child to a guardian, it doesn’t matter who appointed that person guardian; you, as DHS, as a federal Cabinet-level agency, need to make sure that the person that you are going to pass a minor child’s care into is worthy of that care. And if you haven’t taken biometrics on that person to bounce against fingerprint systems or whatever the case may be, you have no assurance that you’re not turning the child over into the hands of a predator. How could you know? And if that happens, there will be a huge hue and cry after the fact.
MS. VAUGHAN: Well, I think it’s already happened. This is not theoretical at all. I mean, some of these cases that have resulted from the influx of unaccompanied minors at the border have turned out horribly. Some have been turned over to people who abused them. Some put them to work, you know, as indentured labor. Others have come to join the gang members that recruited them in Central America. And in some cases, even the parents of these kids have not been appropriate for placement because they themselves were criminals or, you know, there were some other concerns.
MR. CADMAN: Absolutely.
MS. VAUGHAN: So, I mean, it doesn’t take a lot of imagination to see, you know, why that might fall short to exempt guardians.
MR. CADMAN: It absolutely falls short. And it doesn’t, in my opinion, even matter if some state administrative agency or state court has designated that person as a guardian because the federal agency that has custody of the child – well, the federal department is Homeland Security. Homeland Security doesn’t divest itself of authority because some other entity somewhere has said this is a guardian. They have a primary responsibility to ensure that any minor child that they release into someone’s custody is being released into that – into the custody of a person who, to the best of their knowledge, is not going to traffic them or abuse them. And the only way they can absolutely say that they have done due diligence is to run biometrics on that so-called guardian.
MS. VAUGHAN: Yeah, although actually I think the unaccompanied minors, at least, were technically in the custody of HHS. And I remember when Senator Ron Johnson from Wisconsin did a major investigation into this issue there were some attempts to weasel out of responsibility from HHS. You know, I think it’s even more ludicrous that the Health and Human Services agency would try to claim that it has no care whatsoever for what they’re doing with kids who are in their custody.
MR. CADMAN: I absolutely agree. And that brings up an interesting thing, and that is that the regulation itself makes note of the fact that the Department of Justice’s Executive Office for Immigration Review, which is the immigration courts, has not signed onto these regulations. And so to the extent that Homeland Security officers undertake some of the biometric work on behalf of the courts, they’re going to have a bifurcated system where they do some things one way for DHS and some things another way for EOIR. It’s incomprehensible to me that DOJ and, as you’ve said, HHS haven’t signed onto this so that there is a unanimity of effort where – especially where minors are concerned, but generally speaking so that the government’s speaking and moving and acting with one voice on this matter, especially in immigration.
MS. VAUGHAN: Mmm hmm. All right.
Well, let’s – I’ve got some questions that have come in here, so I’m going to move to that. And again, I would remind people that if you’d like to ask a question, send it to our Twitter feed at @CIS_org or to my colleague Marguerite Telford at mrt@cis.org. That’s an email address for that.
So the new rule says that biometric collection should be authorized for, quote, “other functions related to administration and enforcing immigration and naturalization laws.” What other functions could this information possibly apply to, and should that be more limited? And I’d like to add to that maybe comment on to what extent this information might be shared and should be shared, or not shared, with other agencies of either the federal government or state and local government. Could you talk about that, please?
MR. CADMAN: Sure. One of the things that I noticed in the proposed rule, most particularly with DNA, but as a general rule they talk about privacy issues and they talk about a specific federal statute, Title 8 of the United States Code. I think it’s Section 1367 if I’m not mistaken. And Subsection A talks about penalties, and basically what it says is that for immigration purposes privacy information must be protected and respected, and in fact it prescribes some penalties – serious penalties – to individuals, whether they’re officers or employees, who breach the confidentiality of that information and data. That’s fine. That’s appropriate.
But if you look right down to Subsection B, it goes on to say that the secretary of homeland security or the attorney general in their discretion may authorize other uses for law enforcement purposes. So it seems singular to me to focus only on the penalties for violating confidentiality and not acknowledge that there is not only the authority, but I think it can reasonably be suggested the obligation to undertake some kind of reasonable balance of privacy and protection of the American public by establishing systems of checking data against other relevant databases, which, quite honestly, in most instances is using the FBI’s NGI as the gateway to test against them. We talked about DNA, and there is a collection system of, you know, DNA samples that have been found at crime scenes. And if DHS is collecting DNA from adults, logic dictates that it ought to be bounced against that database to make sure that those adults who may be suspected of serious crimes are not only weeded out and denied benefits, but that the law enforcement entity involved is given the opportunity to know that DHS has collected something relevant to their case.
There are ways that this can done – that this can be done in this and age that balance privacy and law enforcement sharing in an intelligent and respectful way. One of the things that I suggested was the possibility of blind matches using computer algorithms of alphanumerics. You know, I realize that would perhaps call for some coding of both the NGI and the DHS systems to allow that to happen. I don’t know the expenses that would be involved in that, but that’s one way to do that.
But let’s be direct: Even absent that, Subsection B provides that the attorney general and the secretary of homeland security have the authority to do this sharing. And it makes more sense to me for them to outline it in a – in a controlled environment and a regimen that takes it out of the hands of individual field officers or field offices to try and balance the first time, say, the Los Angeles Sheriff’s Office comes and says we hear you guys have a DNA database and we want to check this sample against it. That puts them in an invidious position. They don’t – you know, they can’t just allow a fishing expedition, but they don’t want to just absolutely say no. So logic dictates that that be done at the departmental level in a way that protects the privacy and security, but allows the sharing.
MS. VAUGHAN: Right, for the appropriate purposes.
MR. CADMAN: Absolutely. Yes.
MS. VAUGHAN: Right. Right. So, OK.
Here’s another question from our listeners: How many fake family units would have been stopped at the border over the last decade if there – if this rule had been in place? If these improvements are impactful, I assume it would have been helpful in stopping a degree of smuggling and abuse of minors.
MR. CADMAN: I think the answer to that very last portion is absolutely it would have been most helpful in stopping the trafficking of minors and alien smuggling generally. And the only statistic that I can point to – but it’s a cogent one – is that 20 percent during that pilot that was conducted, and my guess is that it might even have been higher. So if you take the rule of 20 percent and you were to apply it over family units for the – for the past year, two years –
MS. VAUGHAN: Like half a million of them or so. (Laughs.)
MR. CADMAN: – five years, decade, you’re talking about a huge impact on a very seamy underbelly of alien smuggling and human trafficking.
MS. VAUGHAN: Mmm hmm. Indeed.
Another question. It’s been reported that Colombia, Panama, and Costa Rica have been collecting biometrics with U.S. equipment and training from illegal extracontinental or non-Western Hemisphere migrants passing through to get to the U.S. southern border. What else needs to happen? And I would add maybe you could comment on the value of that.
MR. CADMAN: Yes. It’s particularly important if we are paying the freight, so to speak, for this to happen that the – that the data be shared with the United States, with Homeland Security, in a – in a safe and reliable manner. I don’t actually know what electronic cache that data should reside in, what database or repository, but it would be appropriate to gain access to that data in a systematic way and then to be able to bounce against it when you have people applying at the border – particularly if they claim a fear of returning home or seeking asylum, to try and bounce against the stories that they give to the apprehending officer and to the asylum officer at first instance to see whether that in any way matches the evidence of them having been picked up in some other country, whether it’s Panama or Colombia or wherever. Because in those instances where you start getting discrepancies of stories, there’s the first indicator that there may be something wrong with the whole claim being presented to those officers. It’s also important that we show those countries that we have enough interest in what we are asking them to do to take good and full advantage of it.
MS. VAUGHAN: All right. Thanks.
OK. I think we have time for just one more, and that is: Facial recognition technology has begun to be – or the use of facial recognition technology for law enforcement has been challenged frequently at the state and local level in recent years. Could you comment on that, and also what you think the federal government might do to guard against those kinds of critiques, challenges, and in some cases, you know, putting – having it be prohibited altogether?
MR. CADMAN: Yes. Facial recognition, obviously, is a follow-on to photographs, and I’ll give you two really good examples of a divergent path. And actually, they also relate to the capture of images of closed-circuit TV.

You have the People’s Republic of China on one hand and the United Kingdom on the other, and both of those countries make massive use of CCTV. The Chinese authorities use that CCTV and facial recognition as ways of social monitoring and controlling the population. That is, obviously, unacceptable. By the same token you have the U.K. with more stringent safeguards which say that, you know, use of the CCTV is a good crime-prevention tool but that facial recognition can only be undertaken with cause. The U.K. – in fact, there was a seminal case out of Wales where the South Wales Constabulary – (clears throat) – excuse me – was engaging in automatic facial recognition of their CCTV images and the High Court stepped in and said no, you have to have probable cause for that. Capturing the CCTV images for purposes of crime prevention and suppression perfectly fine. But to use it for facial recognition, no, you have to have some cause to do that.

Now, I think there is a slightly different scenario with regard, for instance, to admission and entry into the United States. And if facial recognition can be used as a preliminary to stepping up to the inspector at the first stage and there is something suggested in the facial recognition that this – that this individual may be someone else who is known to be a criminal or a transnational gang member or a terrorist or whatever, I think the middle ground is that that person should be sent into secondary inspection. You’re not denying them entry into the United States at that point, but you are using the facial recognition as a potential pointer – as a tool, as a clue. It’s up to the secondary inspection officers to either establish that the facial recognition is a – was legit 100 percent or this is a – this was a false hit, and then move the person along. But I think there is a place for it in the immigration system for sure.
MS. VAUGHAN: Right. And like other databases, it’s not going to be necessarily determinative, you know, a facial rec match –

MR. CADMAN: Right.

MS. VAUGHAN: – but part of the information that’s gathered that helps the government come to the appropriate decision on something like that.

MR. CADMAN: That’s correct. But one of the things that – you know, that, I think needs to be emphasized is, first, throughout he DHS enterprise, no matter what organization you’re speaking about – whether it’s U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, or Customs and Border Protection – they all need to be speaking with one voice. They need to be absolutely sure that they’re on the same page using the same script, that they’re abiding by the same regulations. And I think that will actually, in the end, enhance public confidence in the capture of this data.
And the second part of that is ensuring that the databases, to the extent that it’s humanly possible, aren’t hacked. I mean, let’s face it, hacking is a reality today, and as a former government employee I can’t tell you how outraged I was to find out that twice OPM’s database was hacked and all of my private data was compromised, and that there are suspicions that it was hacked by the People’s Republic of China. That makes me very unhappy. But I have to say I don’t quibble with the idea of having captured that data from me in the first place. I understood that it was necessary not only, you know, just because I was a government employee, but because at a certain point I had security clearances and they had to capture my photograph and my fingerprints and my signature and all of this other data to make sure that I could – you know, that I was entitled to that information. So the quibble I have there is not that they captured all of that, but that they weren’t really very good about safeguarding it. That is critical.

MS. VAUGHAN: Yeah. All right. Well, I want to thank you for submitting to this discussion today, and I hope everyone enjoyed it. I found it interesting. I hope people will check out Dan’s report on our website at CIS.org and if you are so inclined to comment on the proposed regulation on the Federal Register, which closes today. And please keep your eye on our Twitter feed and our website for our upcoming events in our series of webinars, and everything we do can be found at CIS.org. So thanks so much for joining us and have a good day.

MR. CADMAN: Thanks.

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https://cis.org/Press-Release/Biomet...ecurity-Safety