Earlier this month, our Immigration Group colleagues reported the Department of Homeland Security (DHS) would release a new regulation to expand the collection of biometric data in the enforcement and administration of immigration laws. However, as reported by Roll Call, a DHS Inspector General report raised significant concerns about whether Department is able to adequately protect sensitive biometric information, particularly with regard to its use of subcontractors. The expanded use of biometrics outlined in the Department’s proposed regulation, just as increased use of biometric information such as fingerprint or facial recognition by private organizations, heightens the risk to such data.

The amount of biometric information maintained by DHS is already massive. The DHS Office of Biometric Identity Management maintains the Automated Biometric Identification System, which contains the biometric data repository of more than 250 million people and can process more than 300,000 biometric transactions per day. U.S. Customs and Border Protection (CBP) is mandated to deploy a biometric entry/exit system to record arrivals and departures to and from the United States, with the long-term goal to biometrically verify the identity of all travelers exiting the United States and ensure that each traveler has physically departed the country at air, land, and sea departure locations.

In 2018, CBP began a pilot effort known as the Vehicle Face System (VFS) in part to test the ability to capture volunteer passenger facial images as they drove by at speeds under 20 mph and the ability to biometrically match captured images against a gallery of recent travelers. DHS hired a subcontractor to assist with the development of the technology.

According to the inspector general’s report, DHS has a range of policies and procedures to protect biometric information, which it considers sensitive personally identifiable information (SPII). Among those policies, DHS’ Handbook for Safeguarding Sensitive PII, Privacy Policy Directive 047-01-007, Revision 3, December 2017, requires contractors and consultants to protect SPII to prevent identity theft or other adverse consequences, such as privacy incidents, compromise, or misuse of data information on them.

Despite these policies, the DHS subcontractor engaged to support the pilot directly violated DHS security and privacy protocols when it downloaded SPII, including traveler images, from an unencrypted device and stored it on its own network. The subcontractor obtained access to this data between August 2018 and January 2019 without CBP’s authorization or knowledge. Later in 2019, the subcontractor’s network was subjected to a malicious cyberattack involving ransomware resulting in the compromise of 184,000 facial images of cross-border travelers collected through a pilot program, at least 19 of which were posted on the dark web.

As one of our 10 Steps for Tackling Data Privacy and Security Laws, “Vendors – trust but verify” is critical. For DHS, its failure to do so may damage the public’s trust resulting in travelers’ reluctance to permit DHS to capture and use their biometrics at U.S. ports of entry. Non-governmental organizations that experience a similar situation with one of their vendors face an analogous loss of trust, as well as adverse impacts on business, along with compliance enforcement and litigation risks.

Among the recommendations CBP made following the breach was to ensure implementation of USB device restrictions and to apply enhanced encryption methods. CBP also sent a memo requiring all IT contractors to sign statements guaranteeing compliance with contract terms related to IT and data security.  Like DHS, more organizations are developing written policies and procedures following risk assessments and other best practices. However, it is not enough to prepare and adopt policies, implementation is key.

A growing body of law in the United States requires not only the safeguarding of personal information, including biometric information, by organizations that own it, but also by the third-party service providers that process it on behalf of the owners. Carefully and consistently managing vendors and their access, use, disclosure, and safeguarding of personal information is a critical part of any written information security program.