How to Fix H.R. 3141, The Biometric Exit Improvement Act of 2013

By Janice Kephart on October 9, 2013

On October 9, 2013, the House Homeland Subcommittee on Border and Maritime Security Chairwoman Candice Miller (R-Mich.) and Ranking Member Loretta Sanchez (D-Calif.) were scheduled to hold a meeting to mark up their bill, H.R. 3141, "The Biometric Exit Improvement Act of 2013". The meeting was postponed but the committee should be commended for trying to deal with this issue in a considered manner, and for seeking to build consensus on a difficult issue that has plagued the U.S. immigration system since 1996. Based upon 9/11 Commission recommendations and the statutory requirements that currently exist, a biometric exit is crucial to national security, immigration, and commercial needs of the United States. Without its full implementation prior to passage of H.R. 3141, critical data will be permanently lost.

Significant changes are warranted to make the legislation reflect advancements in technology and to enable the Department of Homeland Security to carry out the mandate, including authorization for funds, perhaps the most essential missing piece to the legislation as drafted.

For more information on recommendations below and attending supporting information, please see my published testimony that was slated for a October 1, 2013 hearing before House Judiciary on the implementation of biometric exit, and is currently postponed due to the government shutdown.

Timelines need to be shorter. H.R. 3141 would require the Department of Homeland Security (DHS) to deploy a biometric exit data system at all pedestrian land ports within three years of enactment and within five years at all air and sea ports. This time frame is unnecessarily long. Right now, America has the technological capability to deploy a biometric air, sea, and pedestrian land solution. No more than two years is necessary. How can we be so sure?

DHS knew in 2009 that a biometric exit system was feasible. A detailed 2009 air pilot by the US-VISIT office (now the Office of Biometric & Identity Management) tested handheld biometric-biographic devices at TSA checkpoints at Atlanta's Hartsfield-Jackson International Airport. Another required CBP to screen departures with mobile laptops configured for a biometric-biographic exit on a jetway at Detroit Metropolitan Airport. Both worked well. Airlines refused to participate in the pilot programs, reiterating the argument that exit, like entry, is primarily a government function. The study's conclusion was: "Overall, the Air Exit Pilots confirmed the ability to biometrically record the exit of aliens subject to US-VISIT departing the United States by air."

In the one month of processing between June and July 2009 — heavy international travel times — the study found that, "The Customs and Border Protection pilot at the jetway in Detroit processed 9,448 aliens and identified 44 watch list hits and 60 suspected overstays. The TSA pilot processed 20,296 aliens subject to US-VISIT and identified 131 watch list hits and 90 overstays", for an aggregate of "hits" of 1.10 percent for the CBP pilot and 1.09 percent of the TSA pilot.

The study also found that line lengths at the TSA checkpoint did not increase and CBP officers on the jetway had little to no impact on departure times. The biometric exit solutions caused no costs or delays in travel queues that increased flight delays or resulted in missed flights. In addition, 99.99 percent of those invited to participate in the study, did participate — only one person in 30,000 refused. The study further found that DHS databases were able to maintain the quality and matching requirements using the fingerprints collected, assuring that people were who they said they were, and their exit data correlated to their identity.

Comparable and proven international deployments of biometric entry/exit. Around the world today are comparable international deployments of biometric border solutions that in many cases are more sophisticated than what current American law requires. Many of these technologies have matured so quickly that the solutions are basically "off the shelf" at this point.

Fifteen nations now incorporate biometrics into border solutions that speed through passengers while providing real-time data on exit to law enforcement, intelligence, and immigration authorities simultaneously. In fact, the United States is currently supporting Ghana's deployment of such a system to help manage its borders, New Zealand uses one biometric step for both boarding pass issuance and immigration exit control, and the United Arab Emirates has used biometrics to control its borders at all land, air, and sea ports since 2004 without a glitch. Indonesia deployed its biometric entry/exit system in 2011. It worked in real time, populating watchlists and immigration and law enforcement databases simultaneously at its largest airport in 2011, which has an annual throughput of 10 million international travelers, placing it in U.S. terms only second to JFK's 12 million annual throughput. All of Indonesia's ports of entry followed suit quickly. Hong Kong uses biometric entry/exit at its immense land port of entry with China. The list goes on.

The point is, America is capable of doing this quickly and well if CBP works with the biometric industry to fulfill its current mandate under the law. The agency states that testing will start for air solutions in January 2014. Close tabs should be kept on CBP's progress, and language in the bill reflecting ongoing oversight would be helpful.

Require land border vehicular traffic to adhere to a biometric exit. Recognizing concerns about travel and trade disruptions, and shortages in the ability to expand the land border infrastructure to accommodate a land border vehicular exit, H.R. 3141 requires an implementation plan to be developed to achieve biometric exit at all ports of entry consistent with current law and no actual biometric deployment of a vehicular biometric exit. While the bill calls for a land pilot at two locations on the southern border and one on the northern border, the language fails to place a timeline on deployment, thus potentially never pushing to full deployment as the bill requires for air, sea, and pedestrian land exits.

An obscure 2005 joint US-VISIT and Smart Border Alliance study of land exit using RFID- embedded secure credentials proved that, even at that time, an ID could be read at 50 mph under good circumstances. Eight years later the technology is better and more accurate. The concept is similar to EZ-PASS in place on highways and the trusted traveler systems today that operate today at the 39 busiest land ports that represent 95 percent of total northern and southern border traffic. It is these ports that should be prioritized for biometric exit deployment. But simply not requiring any vehicular land border exit is not only unnecessary but harmful: most entry/exits in and out of the United States are by vehicles crossing the land borders, so it makes little sense to only deploy a biometric exit to air and sea without inclusion of a land exit that includes a biometric capability.

Eliminate confusion created by prior eight statutes on biometric exit. The bill does not streamline current law delineating clear authorities for DHS. The language needs to clarify that the underlying 2007 statute language that requires air carriers to carry out intake of a biometric exit is repealed, not just its attending 2008 regulation. This will make the bill in sync with the 2013 Homeland Security Appropriations Act requirement that Customs and Border Protection implement exit solely.

Eliminate repetitive government reporting that wastes resources and have already been conducted. H.R. 3141 requires three more reports that have already been conducted and are unnecessary, are costly, and will likely cause further delays. The Office of Biometric Identity Management (then US-VISIT) has conducted three detailed, comprehensive reports on implementing a biometric exit. The 2005 land exit report and 2009 air exit report both determined that a biometric exit was feasible at both portals. A 2008 report provided the cost values under the 2008 regulation, which provides significant value to Congressional evaluation of costs, even if inflated. Examples of inflated costs include risk factors of 100 percent, doubling the cost of estimate, labor costs that are a fraction of today, and significantly better, faster, and cheaper technology than in 2008.

Even if the Committee considers that more studies are necessary, each study must not only include input from the private sector and other stakeholders sector on travel disruption as the language currently requires, but also require inclusion of data from DHS on whether the exit control meets its core functions — immigration or security controls.

Authorize funding. H.R. 3141 fails to authorize funding, a problem that has plagued implementation since 1996. However, the solution is budget-neutral and simply requires an across the board visa or travel (ESTA) fee increase. The tourism industry currently receives $14 from foreign nationals traveling from certain "visa waiver" countries simply to support travel to the United States. A $10 increase in all visa-related or travel documents fees would cover at least deployment to air and sea, and likely land as well, based on current costs that I worked on with industry while a special counsel to the Senate Judiciary Committee on immigration reform. The demarcations on cost and funding are provided in detail here.