Airport_Business_June-July_2019 - 39

LEGAL MATTERS
and Berkeley, along with New York state
lawmakers and officials in Somerville,
Massachusetts, to name a few, were also
taking aim at the technology, according
to media reports.
Another headline-grabber was the
$1 billion lawsuit, filed this past April,
by a New York college student alleging
that Apple had used facial recognition
to falsely accuse him of shoplifting at
several Apple stores around the Northeast.
That same month, a JetBlue passenger's
outraged Twitter post went "viral" after
she described being asked to peer into a
camera prior to boarding a flight at JFK.
(JetBlue has been running trials of the
technology at different airports since
2017.) The passenger demanded to know
how JetBlue knew her face and cried foul
that she had never been asked to optin to this approach. "We should clarify,
these photos aren't provided to us, but are
securely transmitted to the Customs and
Border Protection database," the airline
responded online. "JetBlue does not have
direct access to the photos and doesn't
store them."
Such reassurances hardly mollify
the likes of the Electronic Frontier
Foundation or the ACLU. These and
other privacy advocates have expressed
alarm at U.S. government plans to roll
out facial recognition for all international
passengers at the top 20 American
airports by 2021. They fret that airlines
will get their hands on the data and use
it in nefarious ways; that false positives
will ruin lives; and that hackers will
penetrate these systems, steal identities
and otherwise invade travelers' privacy.
Alleged instances of racial bias by facialrecognition systems, and their alleged
use to crack down on undocumented
immigrants, have added fuel to the debate.

How Should Airports
Respond?
For now at least, these systems clearly do
stir fears of Big Brother in some quarters
of our society. Should airport operators be
concerned about being named in lawsuits
over misidentifications, racial profiling
and the like?
One key protection to keep in mind
is the SAFETY Act of 2002. Passed in
the aftermath of 9/11, it was designed to
safeguard businesses offering products or
services that stand to protect Americans

from terrorism. Under the highest level
of protection, registrants are exempt
from certain punitive, exemplary
and other damages. In addition, they
cannot be forced to pay so-called noneconomic damages unless the plaintiff
suffers physical harm. That means that
embarrassed or offended travelers-
including, potentially, those misidentified
as terrorists by facial-recognition
technology-would be barred from
capturing large sums in court for the
likes of emotional pain and suffering, so
long as the system had been successfully
registered. The SAFETY Act also
provides for a more limited qualification
that can be used to insulate companies
from liability as they field-test, validate
and develop new products or systems.
For airport operators, the key here is
that SAFETY Act protections flow from
manufacturers to end-users. The CLEAR
program, for example, is SAFETY Actprotected, which means stadiums and
airports can join without fear of accruing
liability exposure as a result. When it
comes to facial recognition, then, airports
and airlines should make sure that the
creators of these products and services
have secured SAFETY Act registration.
This will allow them to buy, or agree
to test, facial-recognition systems with a
sense of self-protection.
In a recent search of approved
technologies at safetyact.gov, keywords
such as "facial" and "facial recognition"
turned up just two companies-
MorphoTrust USA and Cross Match
Technologies-that had won SAFETY
Act protection. A wide variety of
screen ing -related vendor s have
successfully registered, to be sure, and
companies that work directly with TSA
enjoy an expedited approval process.
However, airlines and airports would
do well to double-check the SAFETY
Act status of any and all security-related
manufacturers, designers or serviceproviders with which they work or have
buying relationships.

The PR Dimension
Ultimately, litigation may not be the
greatest threat to facial recognition
technology in aviation; rather, that
could come in the form of growing
public distrust spurred by outrage-laced
social media storms, conspiracy theories

and negative headlines. The JetBlue
incident highlights how important it is
for airlines and airports to be proactive
about countering misinformation and
making sure passengers understand how
these systems work.
Through signage, social media
messaging and other means, the industry
needs to make abundantly clear when and
how people can opt-out of the scans (and
if they cannot, as with whole-terminal
scanning, airports need to be upfront
about it). Travelers also need to know
that their biometric data will never be
shopped around globally, Facebook
style. Moreover, it is critically important
to avoid the kind of disastrous security
breaches that have affected the likes of
Yahoo, Target and Equifax. Given that
this technology is relatively young and
is bound to have the expected bugs and
errors, screeners also need to be trained
to anticipate misidentifications. When
they get a "hit," they should respond
professionally, take the passenger to
the side and engage in a standard ID
check. Aggressive "red alert" responses
to misidentified passengers are a PR
nightmare in the waiting. No doubt about
it-they will be filmed and posted within
seconds of occurring, if not in real time.
Facial recognition technology is here
to stay. Millions of Americans already use
it to unlock their Apple iPhones, and
these systems will undoubtedly get faster
and more accurate by the day. Could
stakeholders in U.S. aviation leverage
the technology to essentially roll back
the clock on the airport experience?
Given the effects of consolidation,
extreme weather and other factors, that
may be overly ambitious. On the other
hand, FaceFirst cites the potential for
a combination of facial-recognition
technology, walk-through scanners
(they can scan multiple travelers at once
without any need to stop or even slow
down) and 3D CT scans for carryon
luggage to radically improve the speed
and efficiency of the security-screening
process. The upper limits of what is
possible, in other words, may outpace
our imaginations-so long as we handle
these tools skillfully and build in the right
safeguards. 

JUNE/JULY 2019 \ AVIATIONPROS.COM / 39
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