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Department of Homeland Security Seeks Additional Comments on Proposed Biometrics Rule

The Department of Homeland Security's ("DHS") approach suggests the agency will implement some form of biometric exit screening.

The DHS and Customs and Border Protection ("CBP") have reopened the comment period for its proposed Entry/Exit Biometrics Rule. The original comment period closed in December 2020.

What Does the Proposed Rule Do?

Under the proposed rule, CBP is authorized to use facial recognition technology to verify the identity of all non-U.S. citizens or nationals departing the United States at commercial airports. According to DHS, the proposed rule was issued in response to a statutory mandate requiring DHS to adopt an automated, biometric entry and exit system at air, sea, and land ports.

Why Is Reopening the Comment Period Significant?

First, reopening the comment period suggests that DHS is genuinely interested in finalizing the proposed rule. Reopening the comment period is one of the first regulatory actions DHS has taken since Alejandro Mayorkas was confirmed as secretary of Homeland Security. His choice to take proactive steps to seek additional public comments, as opposed to allowing the proposed rule to sit dormant, suggests that DHS is seriously weighing how best to proceed.

Second, it suggests that DHS may be open to revising its approach to facial recognition technology in any final rule. Numerous commenters argued that facial recognition technology is prone to error and that these shortcomings disproportionally impact immigrants and communities of color. Instead of facial recognition, these groups argued that DHS should use fingerprint data to identify individuals. Given the recent executive orders on supporting immigrants and underserved communities, DHS will likely be more sensitive to these concerns, which could result in abandoning the proposal to use facial recognition technology in favor of some other form of biometric exit screening.

What Are Next Steps?

Interested parties, such as airports and air carriers, should consider how DHS's actions will impact their businesses and should consider filing a comment. For example, a decision by DHS to utilize fingerprint data over facial recognition technology likely would disrupt existing passenger flows and require substantial changes to airport infrastructure. Filing a comment can help the agency address your business's concerns or protect your business's interests. All comments are due by March 12, 2021.

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