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DHS’s face recognition roll-out is especially concerning. The agency uses mobile biometric devices that can identify faces and capture face data in the field, allowing its ICE (immigration) and CBP (customs) officers to scan everyone with whom they come into contact, whether or not those people are suspected of any criminal activity or an immigration violation. DHS is also partnering with airlines and other third parties to collect face images from travelers entering and leaving the U.S. When combined with data from other government agencies, these troubling collection practices will allow DHS to build a database large enough to identify and track all people in public places, without their knowledge—not just in places the agency oversees, like airports, but anywhere there are cameras.Police abuse of facial recognition technology is not a theoretical issue: it’s happening today. Law enforcement has already used face recognition on public streets and at political protests. During the protests surrounding the death of Freddie Gray in 2015, Baltimore Police ran social media photos against a face recognition database to identify protesters and arrest them. Recent Amazon promotional videos encourage police agencies to acquire that company’s face “Rekognition” capabilities and use them with body cameras and smart cameras to track people throughout cities. At least two U.S. cities are already using Rekognition.DHS compounds face recognition’s threat to anonymity and free speech by planning to include “records related to the analysis of relationship patterns among individuals.” We don’t know where DHS or its external partners will be getting these “relationship pattern” records, but they could come from social media profiles and posts, which the government plans to track by collecting social media user names from all foreign travelers entering the country.

The government’s brief does not acknowledge the sweeping implications of its arguments. It tries to portray its requested unlocking order as narrow and modest, because it “would not require Apple to make any changes to its software or hardware, … [or] to introduce any new ability to access data on its phones. It would simply require Apple to use its existing capability to bypass the passcode on a passcode-locked iOS 7 phone[.]” But that undersells the implications of the legal argument the government is making: that anything a company already can do, it could be compelled to do under the All Writs Act in order to assist law enforcement. Were that the law, the blow to users’ trust in their encrypted devices, services, and products would be little different than if Apple and other companies were legally required to design backdoors into their encryption mechanisms (an idea the government just can’t seem to drop, its assurances in this brief notwithstanding). Entities around the world won’t buy security software if its makers cannot be trusted not to hand over their users’ secrets to the US government. That’s what makes the encryption in iOS 8 and later versions, which Apple has told the court it “would not have the technical ability” to bypass, so powerful — and so despised by the government: Because no matter how broadly the All Writs Act extends, no court can compel Apple to do the impossible.