Talking Points on the FBIs Next Generation Identification System

The FBI has a database called the Next Generation Identification system. Its likely the largest
government biometric database in the world. NGI has fingerprints, photos, and iris scans for tens of
millions of people, which the FBI, state and local police search with face rec ognition and fingerprint
matching. The FBI also searches NGI for fingerprint-based background checks.

NGI likely over-enrolls African Americans, Latinos, and immigrants. Most NGI records come from
arrest records and African Americans suffer from disproportionately high arrest rates. Almost every
immigrant who applies for citizenship or a green card is also enrolled.

NGI threatens privacy, civil liberties, civil rights, and our open government with special risks for
immigrants and people of color.

The FBI and the police can search NGI for any crime, however minor. Stand in the road?
Block an entrance? Both are crimes you can investigate in NGI.

The FBI and the police can use NGI facial recognition to monitor peaceful political
activists. In 2012, Sen. Franken confronted FBI about NGI documents showing people at Obama
& Clinton rallies tracked with face recognition.

Face recognition programs may misidentify African Americans, women, and young people
at unusually high rates. An FBI expert co-wrote a paper with this exact conclusion. NGI may be
least accurate on the groups it affects the most.

NGI fingerprint background checks are notoriously unreliable. Every year, thousands of
people (including an undue number of African Americans) are hurt by FBI arrest records that
dont distinguish between the innocent and the guilty.

The law requires that FBI release basic information about NGI to the public. For years, the FBI failed to
do that. Now, the FBI wants to make NGI effectively secret and eliminate our right to sue the FBI
for privacy violations.
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The Privacy Act gives you the right to know what the government knows about you and correct
errors in your file. The FBI wants to be exempt from that right.

The Privacy Act bars government tracking of political activities and lets you sue the government
if they break that law. The FBI wants to block those lawsuits.

Impact on Free Speech & Civil Liberties

The Privacy Act bars the government from keeping track of our First Amendment activities (absent a bona
fide law enforcement investigation). (5 U.S.C. 552a(e)(7)). This was inspired by J. Edgar Hoovers spying
on civil rights activists and Nixons spying on political opponents.

The FBI wants an exception to the enforcement provision that applies to the whole Privacy Act (5 U.S.C.
552a(g)) including the section that bars tracking of First Amendment activity.

The FBIs exceptions to the enforcement provision would mean that if the FBI used its biometrics
database to track peoples political activities, those people could not sue the FBI.

For example: Black Lives Matter holds a protest in D.C. People peacefully block the entrance to the
Trump hotel. Police order the protesters to leave. They dont. An FBI agent (or a DC police officer) takes
their photo and searches it through NGIs facial recognition system, identifying several of them. (He can
do this because the protesters are technically committing a crime under D.C. law.) He does this at other
protests, secretly building a file on BLM.
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Under the Privacy Act, the protesters could sue the FBI to stop this. The FBI exemption would
block those lawsuits.

This is not a far-flung hypothetical. In 2012, Sen. Franken confronted FBI about NGI documents
showing people at Obama & Clinton rallies tracked with face recognition. In 2015, the FBI director
acknowledged surveillance flights over Ferguson and Baltimore, and The Intercept revealed that
DHS was tracking peaceful BLM protests.

Impact on the Immigrant Community

Almost all recent immigrants likely have their fingerprints enrolled in NGI. Unless they qualify for an
exception, all legal immigrants applying for citizenship or permanent residency have their fingerprints
searched in NGI -- and then added to that database.
Every time the FBI, or state or local police search fingerprints against NGI, immigrants the vast majority
of whom have never been accused of a crime have their prints searched, also.
Being an immigrant shouldnt make you a de facto criminal suspect. It should also not expose you to
fingerprint identification errors which do occur, with sometimes catastrophic results. Yet this is what NGI
achieves.

NB: The FBI is not asking for a Privacy Act exemption for its civil fingerprints (including immigrants). But
they still need to be more transparent about how they enroll immigrants in NGI -- and let the public weigh
in on whether enrollment should occur in the first place.

Impact on People of Color

There is strong reason to think that NGI will have an acute -- and negative -- impact on people of color,
particularly African Americans.

The NGI database likely over-enrolls African Americans and Latinos. The database is primarily built
from arrest records submitted by states, and both groups suffer from disproportionately high arrest rates.
Importantly, the database is not limited to people arrested for serious or violent crimes. Any crime is
enough for enrollment -- no matter how minor, and no matter whether the person was actually charged for
the offense.

African Americans are more likely to lose work due to incomplete FBI records. A 2013 report found
that half of FBI arrest records do not specify whether the person arrested was found guilty, innocent,
whether charges were dropped, or whether charges were never filed in the first place. The same report
found that due to disproportionately high arrest rates, African Americans were highly likely to be hurt by
these background checks. (Black community leaders across the country have spoken out against these
background checks.)

Face recognition programs may misidentify African Americans, women, and young people at
unusually high rates. An FBI expert co-wrote a paper with this exact conclusion. NGI may be least
accurate on the groups it affects the most.

Unfortunately, the exemptions that the FBI is asking for would make it harder to figure out whether you
are in the system -- figure out whether that system is accurate -- and hold the FBI to account for any
mistakes or abuses of it.

Impact on Government Transparency

The FBI should be as transparent as possible about this database Biometrics are permanent. You
can change your credit card or password; you cant change your face - or your fingerprints. This
extraordinarily powerful system calls for extraordinary steps to prevent abuse.

Yet the FBI has repeatedly failed to meet basic transparency requirements for NGI. The FBI waited
until 2016 to issue a basic privacy notice that they should have issued soon after NGI was launched in
2008. The FBI allowed state and local police to run facial recognition searches of NGI in 2011, yet -despite pressure from civil society groups -- didnt issue a Privacy Impact Assessment on its updated
facial recognition system until September 2015.

...and the FBI now seeks to cloak the system in even more secrecy. The exemptions that the FBI is
requesting will make it harder for the public to determine whether theyre enrolled in the system and
whether their files are inaccurate or out-of-date -- and will make it harder for the public to fix any errors in
the system. The exemptions will also block citizens from suing the FBI for any violation of the Privacy Act.