Ten Reasons to be Skeptical of an Obama Biometric Exit

By Janice Kephart on March 12, 2012
In June 2009, US-VISIT conducted the required Exit pilots at Detroit and Atlanta. One tested TSA checkpoints, the other required CBP to screen departures on the jetway. Both went very well, with no increase in processing time that amounted to missed flights, or even longer flow time or lines. Those processed complied. Overstays and watchlist hits were found. The technology worked. Overall, the Air Exit pilots confirmed the ability to biometrically record the exit of those aliens subject to US-VISIT departing by air.

"The Politics and Practicalities of Exit Controls", August 2010

No border-related announcement has hit as hard in recent months as last week's announcement by the Department of Homeland Security that it is preparing a plan to install a biometric system for tracking the departure of foreign visitors -- the Exit portion of the Entry-Exit system Congress mandated in 1996. The plan is to be released in coming weeks. As the country has waited almost 15 years for the implementation of an Exit program, the week in homeland security news has been dominated by this gem of an announcement from the Department's Counterterrorism Coordinator, John Cohen.

Much of the announcement was devoted to creating bridges between data repositories, which sounds like the foundation for fulfilling the 9/11 Commission recommendation for creating person-centric files that pull data on individuals from the 28 or so border-related databases into one file for immigration, law enforcement, and intelligence purposes. Or, if not into one file, at least accessible by all who "need to know". All of this is good news, for sure. Added to this equation — and clearly not the centerpiece — was a biometric Exit component, left completely undefined, but at least a step in the right direction. Or at least we hope so.

As thrilling as it would be to see this congressional mandate and 9/11 Commission recommendation come to fruition, there are reasons to be skeptical.

1. This announcement comes as the department is about to be denied $30 million. What's the relationship between Exit and $30 million for the Secretary's office? In a relatively common ploy by appropriators who are frustrated with a department that fails to implement laws, appropriators will often require that in exchange for dollars, a program has to get under way. Here is what Congress said last year in their December 15, 2011, conference report making clear that the Secretary's office, where DHS Deputy Counterterrorism Coordinator John Cohen's office resides, would be denied $30 million — nearly a quarter of the budget — without an Exit plan forthcoming by March 30, 2012:

For necessary expenses of the Office of the Secretary of Homeland Security, as authorized by section 102 of the Homeland Security Act of 2002 (6 U.S.C. 112), and executive management of the Department of Homeland Security, as authorized by law, $133,159,000: ... Provided further, That $30,000,000 shall not be available for obligation until the Secretary of Homeland Security submits to the Committees on Appropriations of the Senate and the House of Representatives a comprehensive plan for implementation of the biometric air Exit system, as mandated in Public Law 110–53, including the estimated costs of implementation.

Could this promise really just be a ploy to get the appropriators to hand over money? The timing is a bit odd.

2. The subject matter expert on biometric border solutions has been cut out of the research, development, and implementation on biometric Exit. John Cohen's testimony states: "DHS has directed the Science and Technology Directorate to establish criteria and promote research for emerging technologies that would provide the ability to capture biometrics at a significantly lower operational cost." In other words, US-VISIT is out of the picture. How could this be? Perhaps understandable if the Exit Cohen discussed was merely biographic, but once biometric is introduced into consideration, the only shop that has that expertise, and has proved it time and again, is US-VISIT. So why has the DHS parent demanded that US-VISIT turn over all their data to the Science and Technology Office at DHS and then cut US-VISIT out of any further discussions on how to proceed?

In June 2009, US-VISIT conducted pilots required by law at Detroit and Atlanta. One tested TSA checkpoints, the other required CBP to screen departures on the jetway. Both went very well, with no increase in processing time that amounted to missed flights, or even flow time or longer lines. Those processed complied. Overstays and watchlists hits were found. The technology worked. Overall, the air Exit pilots confirmed the ability to biometrically record the Exit of those aliens subject to US-VISIT departing by air. In October 2009, the appropriations committees received the evaluation report from US-VISIT as required by law. However, Secretary Napolitano refused to speak of the reports or share the results of those pilots, let alone acknowledge them. Before that, US-VISIT did testing at kiosks on jetways that proved kiosks were not a helpful solution.

The department is claiming it seeks lower operational costs, which is nearly a given in how quickly technologies are being developed and deployed by the private sector. Yet that does not excuse the department from not enabling the most efficient entity to do the work. A counterterrorism coordinator does not have the technical expertise to follow through on a technology solution for the border, even if he oversees the policy development, as he should.

3. US-VISIT is being dismantled by the administration. How committed is DHS to biometrics when they are intent on politicizing the program, mixing its budget in with Customs and Border Protection (CBP), and splitting its currently harmonized staff into two? I wrote about this a few days ago here.

4. Internal discussions have focused entirely on an "enhanced biographic Exit", not a biometric one. The working groups that have come up with the "phased" approach reiterated in Cohen's testimony before the House Homeland Security Committee this week have only focused on enhancing what is already in place, not adding a biometric component. A full plan for a biometric component, relying wholly on reading US-VISIT reports on prior pilots and research and development, and figuring out how to technically deploy a biometric capability a few weeks from now, seems a tad far-fetched in bureaucracies that have layers upon layers of vetting done before plans become public. If the plans have not received such vetting, there is a good chance they simply will not work.

5. The biometric Exit plan must include another series of pilots, as it seems clear the successful pilots from 2009 are in the DHS trash bin. So for those pumped about Exit, put the brakes on. Do not expect Exit any time soon. Pilots occur, then are reported upon, then decisions are left with policymakers. In 2009, Homeland Secretary Napolitano sat on making any decision, and then decided against a biometric Exit, and now is allowing John Cohen to make an announcement, a full two years later.

6. This past week, the House Appropriations Subcommittee on Homeland Security held a hearing on President Obama's proposed budget cuts to CBP, included in the Department of Homeland Security's (DHS) budget proposal for FY2013. While CBP is receiving a modest increase over the prior year's request, the administration is slashing border technologies, including nearly $73 million cut from border security fencing, infrastructure, and border technologies and $6.7 million in technology modernization, presumably the same type of monies that would be needed to pursue the integration of data that Cohen touted in his testimony.

7. Any plan would have to include a budget request. This announcement comes right after the president has submitted his budget to the Hill, and the next one will not come until after the presidential election. At best, any pilot or implementation is being kicked to the next administration, and may or may not be pursued.

8. The president's budget significantly cuts CBP inspector funding between the ports of entry on land borders by $6 million — and Exit requires inspectors. The prior US-VISIT studies showed that the expense of Exit was not in the technology, which was generally a one-time expenditure with some maintenance, but in the addition of CBP inspectors to man the operations continually. How will biometric Exit happen if the president is reducing an already insufficient inspection force that cannot handle its current workload? If DHS is looking at significantly reducing operational costs, then 1) either TSA runs Exit as part of its "ID" check duties (which is currently unhelpful as it does not vet an ID); 2) DHS returns to the idea of unmanned kiosks (piloted in 2007 and, while the technology works, travelers do not use them); or 3) the airlines will be back in the Exit plan, which they have successfully kept themselves out of since 2009, and rightly so. Borders are a government responsibility, not a private one.

9. Even if all the hurdles are overcome and Exit does happen, the Obama administration has already made clear that those who enforce the law against overstays, the agents in Immigration and Customs Enforcement, are not to pursue any illegal overstay unless national security or public safety is at stake. In other words, the border authorities will have all the data they need to enforce the law, but the president's current "amnesty by any means" strategy will ensure that very little of that data gets used.

10. The history of Exit is long and complicated, rooted in numerous laws, none of which were referenced in this announcement. Congress and the 9/11 Commission again and again have layered on requirements and missions for such a program. The issue has waxed and waned, yet in the post-9/11 era the issue of national security and biometrics has been a big one. The issue has never failed to engage Congress. In 2000, two separate laws were passed, one that set up Exit and the other that tied it to the Visa Waiver Program. In 2001, the USA Patriot Act chimed in again, demanding Exit. In 2002, the Border Security Enhancement law again required Exit, and in 2004, the intelligence reform act emanating from 9/11 Commission recommendations included it again. Then in 2007 the 9/11 Commission Recommendations Act reiterated the need for Exit and required Exit to apply to all foreign nationals entering under the Visa-Waiver Program, adding in a biometric component.

The basic idea behind a biometric Exit requirement is to reassert the 9/11 Commission recommendation that the federal government ensure that people are determined in real time to be who they say they are, and that no derogatory information be linked to them to prevent departure. None of this language was used by Cohen, and his comments so far are vague enough to leave one wondering what he really means. Will the new plan adhere to current laws? Is the department going to pick and choose what pieces of what law it wants to implement? Will it only apply to citizens of visa-waiver countries? Will it only apply to air travel? What about the southern land border, which does not have Exit inspectors or infrastructure in place for an Exit program?

One more little tidbit that is bothersome: The secretary did not make the announcement, the Director of Counterterrorism did, despite the fact that Exit has been a high-profile issue for years. Why? Because the secretary is already on the record stating she believes Exit is a waste of money? If that is the case, and remains the case, then Mr. Cohen only has tacit support from the secretary, and any plan he puts forward could well receive little to no support from those above him.