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Civil Rights Watchdog Raises Constitutional Issues With Plan To Use Facial Recognition On Travelers

U.S. Customs and Border Patrol
A facial recognition camera is used by U.S. Customs and Border Patrol at the Houston International Airport. This model is made by NEC, one of the companies competing for the Hawaii contract.

The ACLU of Hawaii sent a letter to state officials on Monday saying the group has serious privacy and civil rights concerns over the planned use of facial recognition in state airports.

The state government is now testing facial recognition technology at the Daniel K. Inouye International Airport as way to screen travelers for signs of illness.

Five companies are currently participating in a pilot project aimed at demonstrating the potential of thermal sensors and facial recognition cameras to identify travelers with a fever and who may be infected with the SARS CoV-2 coronavirus that causes COVID-19.

The pilot project was announced on June 10th by Department of Transportation spokesperson Tim Sakahara at a press conference with Gov. David Ige and Attorney General Clare Connors.

Sakahara stated that the pilot project would include five private companies and would take place in Honolulu’s Daniel K. Inouye International Airport. He confirmed separately that the test will run through Friday, at which point the department will select a winner and award a contract.

The ultimate plan is to install facial recognition cameras and thermal detectors in Honolulu, Kailua-Kona, Hilo, Kahalui, and Lihue.

In an email, the Department of Transportation said the five companies participating in the trial are Infrared Cameras, NEC, FLIR, iOmniscient, and Omnisense. Infrared Cameras and NEC are filing a joint proposal.

However, the state may find itself in a legal challenge before that comes to fruition. Mateo Caballero, legal director with the ACLU of Hawaii, sent a letter to the governor, attorney general, and state Transportation Director Jade Butay stating that the civil rights watchdog has serious concerns about the program.

Specifically, Caballero says the wide use of facial recognition is potentially in violation of the state constitution’s right to privacy.

“By having a camera at the airport that is following your every step, it is violating that right to privacy,” Caballero said in an interview with HPR.  “What the Hawaii Constitution requires is that the government, if it’s going to intrude on your privacy, it has to show that its using narrow means to a compelling government interest.”

Caballero contends the government has not met that standard. As far back as early May, officials with the CDC have said thermal screening at airports will not be effective due to the presence of asymptomatic carriers and those with mild symptoms. State health officials have voiced similar concerns.

While the ACLU of Hawaii acknowledges the need to prevent the spread of COVID-19, Caballero says that the wide scope of the current facial recognition plan, combined with the lack of demonstrated effectiveness, does not provide sufficient justification to warrant violating a constitutional right.

“These types of efforts should follow what public health officials are telling us. And here you have CDC officials say, screening for high temperature is not the way to go,” he noted.

The ACLU argues that the state has not disclosed sufficient information on the details of the contract, how screening will work, what data will be collected, and how that data will be used, and for how long data will be stored. Caballero says the group would rather see a more targeted approach consisting of in-person screening and testing, but that any solution should include a public discussion.

The Department of Transportation has said previously longer-term, it plans to have thermal scanners in place at airports around the state by mid-July and facial recognition cameras in operation by December.

Read the letter from the ACLU of Hawaii here:

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