10a. Draft Order 2021 - 06
1 2 ORDER 2021-06: 3 AN ORDER OF THE PORT OF SEATTLE COMMISSION 4 5 to direct the Executive Director to develop and implement 6 executive policies banning Port and private sector uses of 7 public-facing biometrics for mass surveillance, and for law 8 enforcement and security functions; developing and 9 implementing Port policies within the limitations of state 10 and federal law related to Port, federal and private-sector 11 uses of public-facing biometrics at Port facilities for traveler 12 functions; and endorsing federal legislation implementing a 13 moratorium on federal uses of biometrics not explicitly 14 approved by the United States Congress. 15 16 PROPOSED 17 JULY 13, 2021 18 19 INTRODUCTION 20 On December 10, 2019, the Port of Seattle Commission passed Motion 2019-13 instituting 21 guiding principles for the public-facing use of biometric technology at Port facilities and by Port 22 employees; for the purposes of the Motion, "public-facing" was defined as any areas of Port 23 facilities where visitors, travelers and other non-employees might reasonably be. 24 25 This action was both in response to the rapid implementation of biometric technology 26 throughout the country particularly the use of facial recognition technology in aviation and 27 maritime settings as well as because of limited state and federal policy guidance on biometrics 28 to protect individual liberties, equity, and privacy. The Motion directed Port staff to develop 29 tangible, enforceable policy recommendations based on these principles in collaboration with a 30 Biometrics External Advisory Group and with the oversight of a Port of Seattle Commission 31 Biometrics Special Committee. 32 33 Aviation and maritime uses of public-facing biometrics have potential operational, customer 34 service and public health benefits but also create risks and concerns related to privacy, equity 35 and civil liberties. To balance these interests, it is appropriate for the Port to regulate within 36 the bounds of its authority and to the extent permissible under state and federal law the public- 37 facing use of this technology at Port facilities and by Port employees. After more than a year and 38 a half of work and approximately twenty public meetings, Port staff have developed policy 39 recommendations for multiple "use cases" for public-facing biometrics at Port facilities. Already, 40 one set of use case policy recommendations regarding "Biometric Air Exit", which is the 41 federally-prescribed use of facial recognition technology for the boarding of departing 42 international flights was passed by the Port of Seattle Commission in March 2020. 43 44 Order 2021-06 Port Public-Facing Biometric Technology Policies Page 1 of 5 45 As part of this policymaking process, the Port recognizes certain limitations on its authority to 46 regulate all public-facing biometrics at Port facilities. For example, the federal government has 47 authority to implement its own systems, particularly in federally controlled areas of Port facilities 48 such as the U.S. Transportation Security Administration (TSA) security checkpoints at the airport 49 and U.S. Customs and Border Protection (CBP) customs processing areas at airport and cruise 50 facilities. Similarly, the federal Airline Deregulation Act (ADA) prevents the Port from exercising 51 broad control over airlines' implementation of certain customer-facing systems and processes at 52 airports. Regardless, the Port can take significant steps with all Port stakeholders including 53 federal agency partners and airline tenants to pursue alignment with the Commission's 54 biometrics principles. 55 56 In December 2020, the Commission Biometrics Special Committee recommended full 57 Commission consideration of the remaining use case policy recommendations, as well as 58 Commission action on other policies that align with Motion 2019-13. This Order would direct the 59 Executive Director to implement executive policies aligned with the recommendations endorsed 60 by the Special Committee. 61 62 TEXT OF THE ORDER 63 64 The Port Commission hereby directs the Executive Director to develop and implement executive 65 policies to: 66 1) Extend the Port's existing ban on Port and private-sector use of public-facing biometrics 67 for mass surveillance1 at Port facilities, and by Port employees overall. 68 69 2) Extend the Port's existing ban on Port and private-sector use of public-facing biometrics 70 to perform real time or near-real time law enforcement and security functions at Port 71 facilities, and by Port employees overall. 72 73 3) Ensure, to the greatest extent permissible under state and federal law, that all uses of 74 public-facing biometrics at the Port's aviation and maritime facilities for traveler functions 75 are in alignment with the Port's biometric principles and policies. 76 77 In addition, the Executive Director shall include in the Port's Federal Legislative Agenda support 78 for legislation that institutes a moratorium on federal government use of public-facing biometrics 79 except for uses explicitly authorized by the United States Congress, and shall direct staff to 80 advocate for this policy to the Washington Congressional delegation and relevant members of 81 the Biden-Harris Administration. 82 83 84 85 86 1 Defined as "the use of public-facing biometrics without the awareness and active participation of the individual." Order 2021-06 Port Public-Facing Biometric Technology Policies Page 2 of 5 87 STATEMENT IN SUPPORT OF THE ORDER 88 89 Biometrics is the use of technology to identify an individual through analysis of that person's 90 physical and behavioral characteristics. Examples of physical characteristics include the unique 91 features of an individual's face or their fingerprint, while examples of behavioral characteristics 92 include an individual's voice, signature, or how they walk. 93 94 Due to technological advances, perceived customer benefits and federal requirements, there has 95 been a significant increase in public-facing biometric technology deployment by public and 96 private sector users, including in airport and seaport settings. In fact, public-facing biometrics are 97 already being used at dozens of U.S. airports and cruise terminals by those who see the 98 technology as a major benefit to travelers both because of the potential for a faster and more 99 efficient travel experience, as well as the belief that it offers a more accurate security process 100 than human review of documents. In addition, the COVID-19 pandemic has increased interest in 101 "touchless technologies" as a way to reduce potential transmission of disease; facial recognition 102 biometrics could potentially reduce direct interactions like handing documents back-and-forth or 103 touching screens. 104 105 Public-facing biometrics are already used in various forms at the Port of Seattle's aviation and 106 maritime facilities, such as 1) CLEAR, a private company providing an option to those customers 107 who want expedited screening at TSA checkpoints to voluntarily supply their biometric data in 108 order to verify their identities, 2) CBP use of biometrics at Seattle-Tacoma International Airport 109 (SEA) to validate arriving international traveler identities, and 3) use of biometrics to validate the 110 identities of disembarking passengers from Norwegian Cruise Line ships docked at Pier 66. 111 112 However, many members of the public and various advocacy organizations have expressed 113 concerns about the rapidly expanding use of biometrics. These stakeholders have raised issues 114 around privacy, equity and civil liberties, as well as the potential for unregulated "mass 115 surveillance." To that end, after holding two Study Sessions, conducting stakeholder outreach 116 and doing multiple site visits, the Port Commission passed Motion 2019-13 on December 10, 117 2019 adopting seven "biometrics guiding principles," and directing staff to translate those 118 principles into tangible, enforceable policies. 119 120 Since the start of 2020, a working group of Port staff has collaborated with an external advisory 121 group of key stakeholders to accomplish that task. One of the key findings from this process is 122 that the various use cases of biometrics require separate analysis as to how the Port should 123 (consistent with local, state and federal requirements) apply the biometrics guiding principles to 124 develop policy. One unified set of policies is not practical because of key differences from one 125 use case to another, such as who manages the data, requirements imposed by state or federal 126 law, and the benefits and risks associated with each use. 127 128 129 130 Order 2021-06 Port Public-Facing Biometric Technology Policies Page 3 of 5 131 One key limitation on the Port's policymaking process is the federal law and regulations that 132 govern federal agency and airline activities at Port facilities. Regardless, the Port can take 133 significant steps to ensure alignment with the Commission's biometrics principles and believes 134 that all proposed policies are consistent with the preemptive limitations on the Port's authority 135 posed by state and federal law. 136 137 As a result of its process, the Port staff has proposed multiple use case policy recommendations: 138 Policies governing Port actions and rules regarding Biometric Air Exit, which is the use of 139 biometrics (specifically facial recognition technology) to verify the identity of departing 140 international air passengers using CBP's Traveler Verification System (TVS).2 141 Policies governing Port actions in response to CBP's use of biometrics (including facial 142 recognition) to confirm the identities of arriving international passengers as they exit 143 aircraft or cruise ships, as well as future federal government use of biometrics for other 144 traveler functions.3 145 Policies governing Port actions and rules regarding the use of biometrics (including facial 146 recognition) to perform real time or near-real time public-facing law enforcement and 147 security functions at Port facilities. 148 Policies governing Port actions and rules regarding a variety of uses of biometrics for 149 traveler functions by Port staff and/or private-sector entities. 150 151 This Order would direct the Executive Director to implement executive policies aligned with the 152 remaining use cases (in addition to the already-approved Biometric Air Exit policies), and would 153 also direct the creation of an overarching executive policy banning Port and private-sector uses 154 of public-facing biometrics for mass surveillance as defined by Motion 2019-13. That Motion 155 defines mass surveillance as the use of public-facing biometrics without the awareness and active 156 participation of the individual; more concisely, no one at a Port facility should fear that the Port 157 or a private sector tenant is actively tracking them with near time or near real time biometric 158 technology as they traverse a Port facility. 159 160 Almost as important as the proposed public-facing biometrics policies themselves is the process 161 used to achieve these recommendations. The Port Commission has held multiple public meetings 162 and study sessions on this topic, and the Port hired an outside facilitation firm to manage the 163 advisory group process to ensure full and equal participation from all stakeholders. Below is a 164 list of all public and advisory group meetings that helped inform Port staff efforts to develop 165 these recommendations. 166 167 September 10, 2019: First Commission Study Session on Biometric Technology 168 October 29, 2019: Second Commission Study Session on Biometric Technology 2 The policy recommendations for this use case were approved by the Port Commission on March 10, 2020, and implemented as Executive Policy (EX-23). 3 The Port has no jurisdiction over these activities, but can still play an important transparency and accountability role. Order 2021-06 Port Public-Facing Biometric Technology Policies Page 4 of 5 169 December 10, 2019: Commission Public Meeting action on Biometrics Principles 170 Motion 2019-13 171 January 17, 2020: External Advisory Group meeting #1 172 February 7, 2020: External Advisory Group meeting #2 173 February 18, 2020: Commission Biometrics Special Committee meeting 174 February 25, 2020: Commission Public Meeting briefing on Biometric Air Exit policy 175 recommendations 176 March 6, 2020: External Advisory Group meeting #3 177 March 10, 2020: Commission Public Meeting action on Biometric Air Exit policy 178 recommendations 179 March 31, 2020: Commission Biometrics Special Committee meeting 180 April 14, 2020: Commission Public Meeting action to extend deadlines for policy 181 recommendations 182 July 10, 2020: External Advisory Group meeting #4 183 July 24, 2020: External Advisory Group meeting #5 184 August 7, 2020: External Advisory Group meeting #6 185 August 21, 2020: External Advisory Group meeting #7 186 September 25, 2020: External Advisory Group meeting #8 187 October 8, 2020: Commission Biometrics Special Committee meeting 188 December 11, 2020: Commission Biometrics Special Committee meeting 189 190 In addition, all meeting materials including External Advisory Group meetings were made 191 publicly available via the Port's Biometrics External Advisory Group webpage at 192 https://www.portseattle.org/page/biometrics-external-advisory-group. 193 194 It is important to note that not all members of the Biometrics External Advisory Group agree with 195 the policy recommendations being submitted, for a wide range of reasons: from some 196 stakeholders who see these recommendations as overly limiting and proscriptive, to other 197 stakeholders believe the current state of facial recognition technology is incompatible with the 198 Commission's Biometric Principles and should be banned for all uses at Port facilities; however, 199 several participants believe the technology has enormous value and promise but requires 200 regulation to protect against bias or infringement on individuals' privacy or civil rights. To that 201 end, all stakeholder concerns are being submitted as part of the Commission materials to provide 202 full transparency outlining changes they think should be made to the specific use case 203 recommendations and/or reasons they think the entire approach should be different. Order 2021-06 Port Public-Facing Biometric Technology Policies Page 5 of 5
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