New U.S. Travel Standards Developed Pursuant to Executive Order 13,780 Are Broad in Scope and Applicability and May Conflict With Privacy and Other Laws
A July 12, 2017 State Department cable to all U.S. diplomatic and consular posts set forth new traveler information gathering and sharing standards that “all 191″ countries are required to meet for (1) information sharing on identity management and (2) information sharing on security and public safety threats” (the “Standards”).
The Standards are set forth in a report jointly prepared by the U.S. Departments of State and Homeland Security with the Director of National Intelligence pursuant to Presidential Executive Order 13,780. On their face, the Standards are sweeping in scope and applicability (worldwide). The Standards include requirements that foreign countries issue electronic passports conforming International Civil Aviation Organization (ICAO) standards, use biometric facial recognition, and track and disclose to the U.S. Government “criminal history record information, including biographic and biometric data” on nationals and permanent and temporary residents of such countries.
Failure to adopt and demonstrate adoption of the Standards, or to provide information to the U.S. Government as to plans to adopt the Standards, may result in travel sanctions, including that nationals or “categories of foreign nationals of those countries” may be included in a Presidential proclamation prohibiting their entry into the United States.
While EO 13780 primarily targets “foreign terrorists” in its title and content, the practical consequences of EO 13780 and the Standards touch foreign nationals broadly, whether they are deemed “terrorists” or “criminals” or not. Moreover, the identity management and information gathering and disclosure requirements of the Standards may conflict with foreign laws, including privacy laws.
For more information about how MassPoint can assist your organization to understand and respond to the Standards, legal issues under and related to EO 13780, potential conflicts of laws, or other issues, please contact MassPoint PLLC at firstname.lastname@example.org or at +1 202 630 2512.