BY EMAIL

June 19, 2020

Jade Butay
Director
Office of the Director, Suite 509
Aliiaimoku Building
869 Punchbowl Street
Honolulu, HI 96813
jade.butay@hawaii.gov

David Y. Ige
Governor
Executive Chambers
State Capitol
Honolulu, HI 96813
cindy.mcmillan@hawaii.gov

Ross M. Higashi
Deputy Director, Airports Division
Airports Division Offices
400 Rodgers Boulevard, 7th Floor
Honolulu, HI 96819-1880
ross.higashi@hawaii.gov

Clare E. Connors
Attorney General
Department of the Attorney General
425 Queen Street
Honolulu, HI 96813
clare.e.connors@hawaii.gov

Re: Use of facial recognition technology at the airports
Dear Director Butay, Deputy Director Higashi, Governor Ige, and Attorney General
Connors:
The ACLU of Hawaiʻi Foundation (“ACLU of Hawaiʻi”) writes with serious
constitutional, civil rights, and privacy concerns about the announcement that the
State of Hawaiʻi Department of Transportation (“DOT”) is installing cameras with
facial recognition technology (“FRT”) at all major Hawaiʻi airports this week as part
of the State’s plan to reopen the state to tourism.1 While we understand the urgent
need to fight the spread of COVID-19 and safely reopen Hawaii’s economy, the
“‘Companies will begin installing both temperature screening equipment and facial recognition
cameras next week,’ [Hawaii Department of Transportation spokesman Tim] Sakahara said, and
added the pilot program will continue through June 26.” John Burnett, Thermal scanners, facial
recognition technology to be installed in Hawaii’s airports, HAWAIʻI TRIBUNE HERALD (June 11, 2020),
https://www.hawaiitribune-herald.com/2020/06/11/hawaii-news/thermal-scanners-facial-recognitiontechnology-to-be-installed-in-hawaiis-airports/.
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 Re: Use of facial recognition technology at the airports
June 19, 2020
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indiscriminate and rushed use of FRT—particularly without adequate regulations,
transparency, and public discussion—is ineffective, unnecessary, rife for abuse,
expensive, potentially unconstitutional, and, in a word, “terrifying.”2
FRT is neither effective nor tailored to addressing the spread of COVID-19.
Based on the limited information available to the public, we understand that FRT is
going to be used “to recognize people who are exceeding the 100.4 degree
temperature as they walk through the terminal.”3 The use of such prying technology
for this purpose is like putting a square peg on a round hole, particularly in light of
simpler, more accurate, and significantly safer alternatives such as prescreening
people prior to arrival, using thermal imaging technology, and having sufficient and
properly-trained staff to identify people with COVID-19 symptoms for additional
screening. Such alternative is preferable, not only because it raises fewer civil
liberties and rights concerns, but also because it is better tailored to preventing the
spread of COVID-19. Specifically, people will likely be wearing facemasks at the
airport so the FRT cameras will have difficulty reading faces.4 Moreover, studies
have shown that only 44 percentage of people hospitalized for COVID-19 might
have a fever at any given point5 and as many as half may be asymptomatic or presymptomatic, making the State’s reliance on FRT both substantially over and under
inclusive.6 There are also reports that the CDC has cautioned against temperature
checks in the airport context as ineffective, further raising questions about why
money is being spent on this invasive technology.7 Such reports underscore the need
John Oliver, Facial Recognition: Last Week Tonight with John Oliver, at 1:54-2:10, 6:58-8:30 HBO
(June 14, 2020), https://www.youtube.com/watch?v=jZjmlJPJgug.
3 Wendy Osher, Facial Recognition Technology to Assist Hawai‘i in COVID-19 Screening at Airport,
MAUI NOW (June 11, 2020), https://mauinow.com/2020/06/11/facial-recognition-technology-to-assisthawaii-in-covid-19-screening-at-airport/
4 Jeremy Kahn, George Floyd protests, coronavirus face masks pose challenges for facial recognition,
FORTUNE (June 15, 2020), https://fortune.com/2020/06/15/facial-recognition-george-floyd-protestscoronavirus-face-masks-pose-challenges/.
5 “In one study of 1,099 hospitalized patients, fever was present in only 44% at hospital admission
but later developed in 89% during hospitalization.” Centers for Disease Control and Prevention,
Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
6 “Another study of skilled nursing facility residents infected with SARS-CoV-2 from a healthcare
worker demonstrated that half were asymptomatic or pre-symptomatic at the time of contact tracing
evaluation and testing.” Id.
7 Suzanne Rowan Kelleher, CDC: White House Proposal For Airport Temperature Checks Is Not A
Reliable COVID-19 Detection Strategy, FORBES (May 9, 2020),
https://www.forbes.com/sites/suzannerowankelleher/2020/05/09/cdc-white-house-proposal-for-airporttemperature-checks-is-not-a-reliable-covid-19-detection-strategy/#7d0d68dd5038.
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June 19, 2020
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for any measure to be independently validated by public health professionals as
likely to be effective prior to deployment.
Having a more comprehensive screening done by trained professionals is
safer and a better fit for the job. Additionally, studies have repeatedly shown that
FRT algorithms tend to be racially biased and inaccurate, for example,
misidentifying black people and people of East Asian descent at far higher rates
than white people.8 In the context of screening masked people for high
temperatures, this could easily lead to people from specific racial backgrounds being
disproportionally misidentified for additional screening while others might not be
screened at all even though they might have a fever and other COVID symptoms.9
Another concern is the State’s lack of transparency on how and why it
decided to implement FRT, and the boundaries on its use. As companies like
Amazon, Microsoft, and IBM are rightfully hitting the brakes on the development of
FRT10 and several jurisdictions across the country are banning its use,11 the State is
cavalierly deploying FRT to screen millions of travelers even though we have not
Clare Garvie et al., The Perpetual Line-Up, Center on Privacy & Technology at Georgetown Law
(2016), https://www.perpetuallineup.org/findings/racial-bias; see also John Oliver, Facial
Recognition: Last Week Tonight with John Oliver, at 8:30-10:10, supra n. 2 (“Asian and African
American people were up to 100 times more likely to be misidentified than white men.” Drew
Harwell, Federal study confirms racial bias of many facial-recognition systems, casts doubt on their
expanding use, WASHINGTON POST (Dec. 19, 2019),
https://www.washingtonpost.com/technology/2019/12/19/federal-study-confirms-racial-bias-manyfacial-recognition-systems-casts-doubt-their-expanding-use/).
9 A recent test by the ACLU of Northern California revealed that FRT marketed to law enforcement
mistakenly matched the faces of one out of five lawmakers with images from an arrest photo
database. More than half of the falsely identified are lawmakers of color, illustrating the most
dangerous risk of FRT. A similar ACLU test conducted in 2018 also misidentified 28 sitting members
of Congress.
10 Kori Hale, Amazon, Microsoft & IBM Slightly Social Distancing From The $8 Billion Facial
Recognition Market, FORBES (June 15, 2020),
https://www.forbes.com/sites/korihale/2020/06/15/amazon-microsoft--ibm-slightly-social-distancingfrom-the-8-billion-facial-recognition-market/#29d6c7d54a9a.
11 San Francisco, Oakland, Berkley, and Alameda in California and Cambridge, Brookline,
Northampton, and Somerville in Massachusetts have banned the use of FRT in their cities. See
Maria G. Gonzalez, Cambridge City Council Votes to Ban Facial Recognition Technology, THE
HARVARD CRIMSON (Jan. 16, 2020), https://www.thecrimson.com/article/2020/1/16/cambridge-citycouncil-bans-facial-recognition/; Peter Hegarty, East Bay city becomes latest to ban use of facial
recognition technology, EAST BAY TIMES (Dec. 18, 2019),
https://www.eastbaytimes.com/2019/12/18/east-bay-city-becomes-latest-to-ban-use-of-facialrecognition-technology/.
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June 19, 2020
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had a meaningful discussion in Hawaiʻi about its use. Instead, the State has
assured the public that it intends to limit to use of the technology inside the
airports and plans to store images only during the time that the passenger is at the
airport.12 However, without knowing the companies involved, the costs, the rules
and guidelines, the algorithm used, access limitations, security measures, time and
place limitations, the contracts with the companies, data gathering, audits, notices
being posted, and other similar critical information that should have been publicly
disclosed and discussed prior to the deployment this week, the State’s assurances
ring hollow. Indeed, if data is collected in response to COVID, it should be restricted
to what is absolutely necessary for public health, and only collected, stored, and
used by public health agencies. Yet, the state has not explained what if any data
will be stored, and if so, how it can be used and who can access it. Several FRT
companies have ties to authoritarian regimes abroad,13 shoddy privacy records,14
and rushing to deploy FRT is a recipe for abuse15 and for forever compromising the
privacy of the people and travelers in Hawaiʻi.
The ACLU of Hawaiʻi is particularly concerned about FRT likely violating
the right to privacy protected under section 6 of article I of the Hawaiʻi constitution
and the fundamental right to travel protected by due process. Because of its
ineffectiveness, the use of FRT is simply not tailored to serve the government
interest of preventing COVID-19 spread, particularly when less intrusive and more
effective alternatives exist.16 We have already heard from frequent interisland
Wendy Osher, Facial Recognition Technology to Assist Hawai‘i in COVID-19 Screening at Airport,
supra n. 3.
13 Thomas Brewster, Remember FindFace? The Russian Facial Recognition Company Just Turned
On A Massive, Multimillion-Dollar Moscow Surveillance System, FORBES (Jan. 29, 2020),
https://www.forbes.com/sites/thomasbrewster/2020/01/29/findface-rolls-out-huge-facial-recognitionsurveillance-in-moscow-russia/#3474d950463b.
14 Davey Alba, A.C.L.U. Accuses Clearview AI of Privacy ‘Nightmare Scenario’, N.Y. TIMES (May 28,
2020), https://www.nytimes.com/2020/05/28/technology/clearview-ai-privacy-lawsuit.html.
15 Clare Garvie, Garbage in, Garbage out, Center on Privacy & Technology at Georgetown Law
(2019), https://www.flawedfacedata.com/.
16 “In determining whether the state interest is a compelling one, a court will review that
government action with strict scrutiny. The strict scrutiny standard of review means that the
government action is not entitled to the usual presumption of validity, that the government must
carry a ‘heavy burden of justification,’ that the government must demonstrate that its program has
been structured with ‘precision’ and is ‘tailored’ narrowly to serve legitimate objectives and that it
has selected the ‘least drastic means' for effectuating its objectives.” McCloskey v. Honolulu Police
Dept., 71 Haw. 568, 576, 799 P.2d 953, 957 (1990) (applying test to article I, section 6 claim) (cleaned
up); see also Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 138 Hawai`i 14, 22, 375 P.3d 1252,
1260 (2016) (extending article I, section 6 protections to deidentified information).
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 Re: Use of facial recognition technology at the airports
June 19, 2020
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travelers with legitimate concerns about their privacy due to constant real-time
surveillance at the airport. They do not want the State to follow their every step,
travel plans, companions, etc. And this is not an outlandish fear when, just last
year, the State tried to subpoena Hawaiian Airlines records for people who had
donated their miles to those attending the Mauna Kea demonstrations.17 In
addition, temperature checks are inherently overinclusive, sweeping in individuals
who may have fevers for unrelated reasons, like chronic illnesses. Given this,
relying on temperature checks as the sole determinant as to whether someone can
travel would raise a multitude of concerns. The state has not explained how the
right to travel will be protected and what redress will be made available to
individuals whose rights are adversely affected.
In light of these serious concerns and the potential for abuse, we ask that the
State and DOT hit the brakes on the pilot program and, at a minimum, allow open
and transparent public discussion on the unprecedented step that real time
biometrical surveillance of millions of people and travelers at the airport means to
Hawaiʻi. This is not only required by the constitution, but also is the right and safe
thing to do, particularly during these already uncertain and difficult times.
Finally, pursuant to Chapter 92F of the Hawaiʻi Revised Statutes, we ask
that the State, DOT, and the Department of the Attorney General produce all
government records (as defined by HRS Section 92F-3) related to the use of FRT in
Hawaiʻi. This request includes, but is not limited to, the use of FRT at the airports.
Given that FRT pilot program is being rolled out this week, we ask that you
please respond to this letter by June 26, 2020. If you have any questions or
comments, please contact me at 808-522-5908 or mcaballero@acluhawaii.org.
Sincerely yours,

Mateo Caballero
Legal Director

Kevin Dayton, Hawaii attorney general subpoenas Hawaiian Airlines for names of people who
donated their miles to TMT protest, STAR ADVERTISER (Oct. 5, 2019),
https://www.staradvertiser.com/2019/10/05/hawaii-news/attorney-general-subpoenas-hawaiianairlines-for-names-of-donors-to-protests/.
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