About the Open Letter to the ICAO

A second report on 'Towards an International Infrastructure for Surveillance of Movement'

We are sending a letter to the International Civil Aviation Organization (ICAO) to ask them to halt their standards-setting on biometric passports. The ICAO is a UN-level organization that is responsible for the standardization of travel documents, among other activities. It is currently meeting in Cairo, from March 22 until April 2nd to finalize the biometric passport among other plans including the transfer of Advanced Passenger Information and Passenger Name Records (see our first report on Transferring Privacy for more information on these policies).

Biometric passport systems, often seen as a response to terrorism, if gone unchecked, will result in national governments developing databases of citizens' face scans, fingerprints, and iris scans. This will likely occur with little deliberation and debate in national parliaments. We worry that these policy changes will be adopted due to perceived 'international obligations' and efforts at harmonization. This is another case of policy laundering, where governments gain the benefits of policies by adopting international standards, without having consulted and deliberated, and often circumventing any such processes.

Put simply, through the ICAO, national governments are establishing national ID systems with all of our face scans and fingerprints without actually having a national debate. It comes as no surprise that the United Kingdom Passport Office is conducting the trial of a national ID card, even prior to any debate in Parliament. In this sense, the ICAO is setting domestic policy, implementing ID systems where previously none may have existed, or enhancing ID documentation through using biometrics, and increasing the data sets in national databases, or creating them when none previously existed.

Background

In the wake of the terrorist attacks, a number of governments have considered introducing ID cards that include biometric identifiers, i.e. fingerprints, iris scans, or facial recognition. National discourses and discussions have occurred, with some deciding for the technology, others against. In the United Kingdom, Canada, and the U.S., the debate has mostly centred on the issue of costs, with some consideration of civil liberties concerns too, as generated by civil society. Articulations of 'asylum seekers' and 'immigration control', 'benefits fraud', and 'terrorists' from government were often countered with articulations of 'risks', 'costs', and 'centralized databases' from civil society organisations. At least the discourse took place.

What many in civil society are not aware of, however, are the international dynamics involving biometric identity documents for travel purposes. The USA-PATRIOT Act, passed by the U.S. Congress after the events of September 2001 included the requirement that the President certify a biometric technology standard for use in identifying aliens seeking admission into the U.S., within two years. The schedule for its implementation was accelerated by another piece of legislation, the little known Enhanced Border Security and Visa Entry Reform Act 2002. Part of this second law included seeking international co-operation with this standard. The incentive to international co-operation was made clear:

"By October 26, 2004, in order for a country to remain eligible for participation in the visa waiver program its government must certify that it has a program to issue to its nationals machine-readable passports that are tamper-resistant and which incorporate biometric and authentication identifiers that satisfy the standards of the International Civil Aviation Organization (ICAO)."

These laws gave momentum to the standards that were being considered at the ICAO by requiring visa waiver countries (which include many EU countries, Australia, Brunei, Iceland, Japan, Monaco, New Zealand, Norway, Singapore, and Slovenia) to implement biometrics into their Machine-Readable Travel Documents (MRTDs), i.e. passports. Failure to do so, presumably, means a removal from the program.

Moving the decision to the ICAO pushes the policy well beyond the Visa Waiver Program countries. The ICAO is the international standard-setter for passports already. And since 1995, the ICAO has been researching biometric passports. Since then the technologies have changed sufficiently to allow for facial recognition, fingerprints and iris scans to be considered for implementation in passports standards.

The technical working group assessing these technologies includes representation from Australia, Canada, Czech Republic, France, Germany, India, Japan, New Zealand, Netherlands, Russian Federation, Sweden, United Kingdom and United States. The primary purposes of biometric use, according to the ICAO, is to allow for verification ("confirming identity by comparing identity details of the person claiming to be a specific living individual against details previously recorded on that individual") and identification ("determining possible identity by comparing identity details of the presenting person against details previously recorded on a number of living individuals"). Beneficial side effects include advanced passenger information to ports of entry, and electronic tracking of passport use.

In their review of biometric technologies, the ICAO assessed their compatibility according to seven criteria, including

The ICAO then took the available technologies and separated them into three groups, based on their overall ability to meet the comprehensive set of requirements, and found that

In May 2003, the facial recognition emerged as the primary candidate. Intellectual Property issues prevented iris scans from being accepted; while it was felt that the facial recognition is more socially acceptable. Multiple applications of biometrics are also considered, and permitted. Although the use of a single biometric technology by all States is preferred by the ICAO to ensure interoperability, "[h]owever, it is also recognized that some States may conclude it desirable to deploy two biometrics on the same document." Already the EU is discussing requiring fingerprints in passports.

The ICAO is aware, however, that there are contentious legal issues involved with the infrastructure for these passports, including the collisions between the goals of centralizing citizens' biometrics and protecting privacy laws, and with 'cultural practices'. Not only does this involve a central data store of fingerprints and photos (and face scans) that can be scanned against other databases for other purposes , but this sensitive information may be transferred to other countries when verification is required at border controls. The ICAO foresees that this information may be retained by these other countries. In essence, this may turn into a global distributed database of personal information.

Despite the concerns of civil society, and their possible gains in the national discourse in preventing national databases of biometric information, these databases are likely to be constructed nonetheless because of international requirements, U.S. policy laundering, and the work of the previously unwatched ICAO. Eventually the U.S. government will have to change its own passports in accordance to ICAO standards (they are predicting by the end of 2005). At that time it may be difficult to remember how we got to this juncture. Officials have already began to make use of 'international obligations' and harmonisation excuses to justify the shift to a biometric passport in the U.S.

Something that may be important to remember at the time of national implementation is that there is some flexibility permitted by the ICAO. Some states may interpret the ICAO standards to require centralised databases. According to ICAO documents,

At States own borders, for passports issued to their own citizens, whether to extract the biometric from the traveller’s passport, or from a database containing the biometric template assigned to that traveller when their passport was issued (note some States are legislatively inhibited from storing biometric templates and in this case have no choice other than to use the image or template stored in the travel document).

The ICAO thus states that

ideally, the biometric template or templates should be stored on the travel document along with the image, so that travellers’ identities can be verified in locations where access to the central database is unavailable or for jurisdictions where permanent centralized storage of biometric data is unacceptable.

The ICAO goes on to say that central databases allow for additional security confirmation checks, but are not necessarily required. It may be interesting to see if national governments recall this option, or if they rather change their national laws to allow for centralized storage, as allowed in other ICAO documents. Creative compliance may be a tool of both the state and non-state actors. Already the EU is moving towards a centralized registry of fingerprints from the passport enrolment process.

Privacy International
March 2004