September 29, 2020

To the Port of Seattle Commission:

Thank you for inviting my office to serve on the Port’s Biometrics External Advisory

Group. As the Congresswoman representing Washington’s 7

district—home to several Port

facilities, and countless employees and customers—I too am committed to ensuring our

constituents’ interests are heard and represented. For that reason, I am writing to express deep

concern for the Port’s use of facial recognition technology for any discretionary purpose.

Algorithmic bias against people of color, women, children, and seniors presents significant and

consequential justice and equity problems for anyone who uses or works at a Port of Seattle

facility. Further, there are broad civil liberties concerns as Federal law currently provides no

privacy safeguards or standards for the use of facial recognition, or other biometric surveillance

technology. What my staff has learned while serving on the Advisory Group coupled with the

evolution of my own thinking prompt me to suggest that the Port Commission consider a

moratorium on the use of biometrics technology in all Port activities under its purview except for

voluntary programs like CLEAR.

Facial recognition technology is plagued with significant bias, as numerous reports have

found that this technology has difficulty recognizing people of color, transgender individuals,

and people wearing masks.

Specifically, a December 2019 National Institute of Standards and

Technology report found that false positives are up to 100 times more likely for Asian and Black

faces, with American Indians having the highest rates of being falsely identified.

This bias has,

at times, grave implications. Earlier this year Robert Julian-Borchak Williams, a Black man in

Detroit, Michigan was wrongfully arrested and imprisoned due to a flawed match from a facial

recognition algorithm.

This is the first known case of wrongful arrest due to false match, and

exemplifies the danger of law enforcement reliance on a technology that is rife with bias.

Rebecca Heilweil, Masks Can Fool Facial Recognition Systems, But the Algorithms Are Learning Fast, Vox (Jul.

28, 2020) https://www.vox.com/recode/2020/7/28/21340674/face-masks-facial-recognition-surveillance-nist

NIST, NIST Study Evaluates Effects of Race, Age, Sex on Face Recognition Software (Dec. 19, 2019)

https://www.nist.gov/news-events/news/2019/12/nist-study-evaluates-effects-race-age-sex-face-recognition-

software

Kashmir Hill, Wrongfully Accused by an Algorithm, New York Times (June 24, 2020)

https://www.nytimes.com/2020/06/24/technology/facial-recognition-arrest.html?auth=login-email&login=email

The lack of federal regulation on the use of facial recognition technology also presents

civil liberties concerns about the widespread implications of its use and the associated data that is

collected. Private companies have begun to respond to the lack of regulation on government use

of FRT. In 2019, Axon, the country’s largest supplier of police body cameras banned face

recognition systems on its technology.

Recently, Microsoft, IBM and Amazon banned police

use of their facial recognition technology, citing lack of federal law on the matter to ensure

ethical use.

These concerns about ethical use are compounded when taken in conjunction with

the longstanding concerns regarding a lack of accountability and ineffective planning and

management within Customs and Border Protection.

Just this month, the Department of

Homeland Security Office of Inspector General found that CBP did not adequately safeguard

sensitive data on an unencrypted device used during its facial recognition technology pilot,

resulting in a massive data breach that allowed hackers to steal approximately 184,000 facial

recognition images and post some on the dark web.

I recognize that the reason the Port Commission is where it is today, deliberating the use

of this fraught technology, is because of Customs and Border Protection’s (CBP) federal

mandate to expedite biometric entry-exit in the wake of 9/11. I further recognize that the

Commission is having to do this despite its visible and concerted efforts to make Port facilities

welcoming and open to people of all colors and ethnicities and statuses. However, under this

administration particularly, CBP has less interest in these same considerations. In fact, under

current law, CBP could use an opt-in framework for the technology, but it has instead chosen to

make it opt-out.

Because of these concerns, I introduced the Facial Recognition and Biometric

Technology Moratorium Act in the House. This bill would:

• Place a prohibition on the domestic use of facial recognition technology by federal

entities, which can only be lifted with an act of Congress;

• Place a prohibition on the use of other biometric technologies, including voice

recognition, gait recognition, and recognition of other immutable physical characteristics,

by federal entities, which can only be lifted with an act of Congress;

Charlie Warzel, A Major Police Body Cam Company Just Banned Facial Recognition, New York Times (June 27,

2019) https://www.nytimes.com/2019/06/27/opinion/police-cam-facial-recognition.html

Jay Greene, Microsoft Won’t Sell Police It’s Facial Recognition Technology, Following Similar Moves by Amazon

and IBM, The Washington Post (June 11, 2020)

https://www.washingtonpost.com/technology/2020/06/11/microsoft-facial-recognition/

Department of Homeland Security Office of Inspector General, CBP Needs a Comprehensive Process for

Conducting Covert Testing and Resolving Vulnerabilities (July 28, 2020)

https://www.oig.dhs.gov/sites/default/files/assets/2020-07/OIG-20-55-Jul20.pdf

Daniel E. Martínez, Ph.D., Guillermo Cantor, Ph.D. and Walter Ewing, Ph.D., No Action Taken: Lack of CBP

Accountability in Responding to Complaints of Abuse, American Immigration Council (May 4, 2014)

https://www.americanimmigrationcouncil.org/research/no-action-taken-lack-cbp-accountability-responding-

complaints-abuse

Department of Homeland Security Office of Inspector General, Review of CBP’s Major Cybersecurity Incident

During a 2019 Biometric Pilot (Sept. 21, 2020) https://subscriber.politicopro.com/f/?id=00000174-bc62-dc18-a57d-

be63f54f0000&source=email

• Condition federal grant funding to state and local entities, including law enforcement, on

those entities enacting their own moratoria on the use of facial recognition and biometric

technology;

• Prohibit the use of federal dollars for biometric surveillance systems;

• Prohibit the use of information collected via biometric technology in violation of the Act

in any judicial proceedings;

• Includes a private right of action for individuals whose biometric data is used in violation

of the Act and allows for enforcement by state Attorneys General; and

• Allow states and localities to enact their own laws regarding the use of facial recognition

and biometric technologies.

Given the current landscape, without the guidance of a federal moratoria or even

regulations on basic civil liberties protections, I understand that the Port must move forward with

setting its own guidance. I commend your efforts to focus on civil liberties concerns, and I

applaud your own moratorium on the use of biometrics by Port of Seattle Police. I also support

the intention to retain some level of control over CBP’s actions by managing use of facial

recognition technology for air exit.

With respect to all non-mandated, discretionary uses, I have concerns about any

government or private entity use. For that reason, while I agree the Port’s guiding principles

provide strong guidance for evaluating the use of the technology, I believe we must more

seriously consider the fundamental question of if the technology should be used at this time.

Considering the impacts of facial recognition technology on vulnerable communities and the

preserving civil rights and liberties should be the main drivers in the decision-making process

regarding this technology. When we act in the best interest of the most vulnerable, with an eye to

upholding the rights of all, we are acting in the best interest of everyone.

I understand that in those cases where the Port decides to allow facial recognition

technology, the guiding principles are intended to act as safeguards for community members,

travelers, and customers. Protections should stay focused on these populations, rather than

providing pathways to justify business use. The “justified” principle, for instance, should more

critically ask what promise facial recognition technology has in moving us toward a more just

society. Currently, facial recognition technology and its uses do not advance justice for people of

color, women, children, and seniors and I strongly oppose the use of any tool that further

marginalizes vulnerable communities. Each guiding principle should center these communities in

use case consideration. Efficiency or cost to businesses cannot be equal to or more important

than civil liberties.

As a member of the Port’s Biometrics External Advisory Group, I urge you to center the

concerns of civil liberties advocates and communities of color in your decisions on the use of

facial recognition at the Port of Seattle. I am hopeful that community input will continue to be

prioritized to ensure the voices of customers, immigrants, and travelers are heard.

Once again, I commend you on doing all that you can to elevate civil liberties concerns

through this process.

Sincerely,

PRAMILA JAYAPAL

Member of Congress