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The US Department of Homeland Security is misrepresenting federal law on its page of frequently asked questions about the biometric exit system that is currently being developed. In particular, they cite 8 CFR 235.1 and 8 USC 1185 as their authority for collecting biometric data of US citizens:

What authorities does CBP have to collect biometrics on U.S. citizens?

The authority to collect biometrics from U.S. Citizens is based on the outbound border search authority, and the requirement for all U.S. Citizens to be in possession of a valid U.S. passport. These authorities are included in 8 CFR 235.1 and 8 U.S.C. §§ 1185(b).

The most troubling of these claimed sources of authority is 8 CFR 235.1 (Scope of Examination), which seems like it might be relevant until one notices that it is a subpart of 8 CFR 235, Inspection of Persons Applying for Admission. Nothing it says is relevant to the question of what may or may not happen with persons seeking to depart.

Is the executive branch violating any law by making this claim?

  • Out of curiosity, do you know when these claims appeared? From news articles on the program, it seems to have been in development for multiple administrations. – Ben Voigt Feb 11 '18 at 6:04
  • @BenVoigt I don't know; I only discovered the linked FAQ a few weeks ago. The mandate for the system traces its origins back at least to 1996, but the "biometric" element seems to have been introduced in 2001 with the USA Patriot act. The laws requiring the system all refer to the entry and exit of aliens, however, so the lack of actual statutory authority for collecting biometrics of US citizens is perhaps unsurprising. – phoog Feb 11 '18 at 6:56
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    @phoog Per 8 USC 1365b(d), "The entry and exit data system shall include a requirement for the collection of biometric exit data for all categories of individuals who are required to provide biometric entry data, regardless of the port of entry where such categories of individuals entered the United States." IOW, entry biometrics requirements result in exit biometrics requirements. CBP appears to be taking the position that the requirement to bear a US passport is an entry biometrics requirement, maybe because the exit biometrics are photo-based and passports have photos? – cpast Feb 11 '18 at 13:33
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    You're taking as given that the stated sections don't actually authorize this program, but that would be something for a court to interpret, if the legality of the program is challenged. If a court finds that the program is authorized then there is no issue. So it seems to me that we have the cart before the horse. – Nate Eldredge Feb 11 '18 at 15:58
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    That might not be clear to you, but it’s not a crazy interpretation (especially because the outbound biometrics are also photographs, and are being compared to the photographs on visas and US passports). CBP might possibly be wrong, but they’re definitely not clearly misrepresenting federal law. Agencies are allowed to make reasonable interpretations even if those interpretations end up being wrong. – cpast Feb 11 '18 at 16:16

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