Monthly Archives: February 2016


U.S. Customs and Border Protection plans to adopt facial recognition technology starting next month at airports across the country. The service will be offered beginning at John F. Kennedy International Airport following a successful trial run at Washington Dulles International Airport. The program, known officially as the 1-to-1 Facial Comparison Project, will specifically be used to confirm the identity of travelers carrying electronic passports embedded with computer chips containing a digital picture of the passport holder. The system works by comparing the digitally-stored picture in the passport with one taken immediately upon presentation of the traveler to customs and border protection for entry into the United States. The technology then rates the match comparison between the two photos on a 0 to 100 scale. Although CBP officials claim that such additional biometric capability will protect legitimate travelers from issues related to identify theft and fraud, civil liberty activists have opposed the program as an overly-invasive surveillance method with the potential for widespread abuse.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).


On January 21, 2016, U.S. Customs and Border Protection began implementation of changes to its Visa Waiver Program (VWP) as established under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (114th Congress, 1st Session, H.R. 158, Dec. 9, 2015) (the “Act”).

The Act — which was originally passed in December 2015 — specifically allows U.S. customs officials to more closely screen travelers from 38 countries included within the purview of the VWP — including several European nations — whose citizens are allowed to travel to the U.S. without first obtaining a visa. It specifically excludes nationals of countries otherwise subject to the VWP who have travelled to, or been present in, Iran, Iraq, Sudan, or Syria on or after March 11, 2011 from VWP eligibility, with exceptions granted to individuals serving a VWP country travelling for diplomatic or military purposes. Dual nationals of both a VWP country as well as Iran, Iraq, Sudan, and Syria will similarly be excluded from participation in the VWP— although such individuals will still be able to apply for a visa using the regular immigration process. Such travelers will also be allowed to apply for a U.S. visa for urgent business, medical, or humanitarian travel to the United States via U.S. embassies and consulates on an emergent basis.

Implementation of the new program also requires travelers with current valid Electronic System for Travel Authorizations (ETSAs) previously indicating dual nationality of both a VWP country and Iran, Iraq, Sudan, or Syria on their ETSA applications to have their ETSA status revoked.

However, despite imposition of new VWP requirements, such restrictions may be waived by the Secretary of Homeland Security if determined to be in the interests of U.S. law enforcement or national security interests, as established on a case-by-case basis under generalized waiver requirements under the Act. Such waivers include: (1) individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf on international organizations, regional organization, and sub-national governments on official duty; (2) individuals travelling on behalf of a humanitarian NGO on official duty; (3) journalists travelling for reporting purposes; (4) individuals travelling for business-related purposes following the U.S./Iraq Joint Comprehensive Plan of Action reached as of July 14, 2015; and (5) others travelling for other legitimate business-related purposes.

Such changes to the VWP have generally been supported by members of the U.S. travel industry and compliment security-tightening actions taken by the White House last November after terrorist attacks in Paris, France claimed 130 lives. An updated ETSA application with additional questions addressing exceptions for diplomatic and military-related travel is expected to be released in February 2016.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).


DOT has announced that it is exploring the feasibility of utilizing a negotiated rulemaking process to address future legal accommodations for air travelers with disabilities. Issues to be addressed include (1) access to inflight entertainment and supplemental medical oxygen; (2) the definition and accommodation of service animals on flights; (3) accessibility of lavatories on single-aisle aircraft; (4) seating accommodations; and (5) carrier reporting of disability service requests.

Following the announcement, more than 50 public comments were submitted to DOT, including several members of the aviation industry. Although consideration of the negotiated rulemaking process was generally supported, certain entities, such as the Airline Experience Association, specifically opposed the negotiated rulemaking process for the consideration of issues such as In-Flight entertainment for disabled passengers, due to its reliance on complex technology involving hardware and software content currently outside of the jurisdiction of the Department of Transportation. Additionally, the Los Angeles Airports Association protested the definition of service animals as established in the Air Carrier Access Act (ACAA) as too broad, thus opening the door for potential abuse.

Airlines 4 America requested that if the negotiated rulemaking process is to be convened, that the Department of Transportation publically provide all information required by the ACAA, including how moving forward with the process was determined to be in the public interest. Airlines 4 America also requested access to specific information used by the Department of Transportation to support its belief that a reasonable likelihood exists that consensus on all issues could be reached.

Similarly, Delta Airlines raised concerns for the Department’s ability to reach consensus for issues including the provision of inflight medical oxygen, inflight entertainment, accessible lavatories on single-aisle aircraft, disability assistance request time monitoring and seating accommodations. However, Delta did believe that the definition and accommodation of service animals would be amenable to the negotiated rulemaking process.

The International Air Transport Association agreed with Delta’s positions, although it added an additional request for the Department to consider potential abuses of current requirements to provide passengers with wheelchairs as a sixth issue as part of the Negotiated Rulemaking process.

We will continue to keep you updated on the negotiated rulemaking process. If you are interested in submitting a comment, or have concerns regarding the above, please let us know.

If you have any questions, please contact Evelyn Sahr (, 202-659-6622), Drew Derco (, 202-659-6665), or Reese Davidson (, 202-659-6633).