| It’s becoming standard practice at a growing number of U.S. airports: When you reach the front of the security line, an agent asks you to step up to a machine that scans your face to check whether it matches the face on your identification card. Travelers have the right to opt out of the face scan and have the agent do a visual check instead — but many don’t realize that’s an option. Sens. Jeff Merkley (D-Oregon) and John Neely Kennedy (R-Louisiana) think it should be the other way around. They plan to introduce a bipartisan bill that would make human ID checks the default, among other restrictions on how the Transportation Security Administration can use facial recognition technology. The Traveler Privacy Protection Act, shared with the Tech Brief on Wednesday ahead of its introduction, is a narrower version of a 2023 bill by the same name that would have banned the TSA’s use of face recognition altogether. This one would allow the agency to continue scanning travelers’ faces but only if they opt in and bar the technology’s use for any purpose other than verifying people’s identities. It would also require the agency to immediately delete the scans of general boarding passengers once the check is complete. “Facial recognition is incredibly powerful, and it is being used as an instrument of oppression around the world to track dissidents whose opinion governments don’t like,” Merkley said in a phone interview Wednesday, citing China’s use of the technology on the country’s Uyghur minority. “It really creates a surveillance state,” he went on. “That is a massive threat to freedom and privacy here in America, and I don’t think we should trust any government with that power.” Kennedy said in an emailed statement: “The TSA subjects countless law-abiding Americans to excessive facial recognition screenings as they travel, invading passengers’ privacy without even making it clear that they can opt out of the screening. The Traveler Privacy Protection Act would protect Americans’ ability to say ‘no’ to these facial scans and safeguard the personal data that the TSA collects.” The push comes as the TSA is rapidly expanding its use of face scanners. The agency began testing face scans as an option for people enrolled in “trusted traveler” programs, such as TSA PreCheck, in 2021. By 2022, the program quietly began rolling out to general boarding passengers. It is now active in at least 84 airports, according to the TSA’s website, with plans to bring it to more than 400 airports in the coming years. The agency says the technology has proved more efficient and accurate than human identity checks. It assures the public that travelers’ face scans are not stored or saved once a match has been made, except in limited tests to evaluate the technology’s effectiveness. Politico reported last year that the agency opposed an effort by Merkley, Kennedy and other senators to restrict the technology as part of an amendment to a bill reauthorizing the Federal Aviation Administration. Senate leadership ultimately declined to consider the amendment. The TSA said Wednesday it was not able to respond to a request for comment on the bill by the Tech Brief’s publication deadline. Merkley has personal experience trying to opt out of facial recognition scans. When he asked to opt out of a face scan at Reagan National Airport near D.C., an agent inaccurately warned him that would cause a significant delay, my colleague Shira Ovide reported in 2023. As Ovide put it: “Is facial recognition technology really voluntary if a United States senator has trouble saying no?” Merkley said Wednesday he has since heard from family members and constituents who have had similar experiences. While he’s optimistic the bill’s bipartisan backing will help it toward passage, he said he hopes at the very least it will push Congress to seriously consider the trade-offs involved in face recognition technology. “Congress should be debating and wrestling with this significant issue,” he said, especially at a moment when there are concerns about the federal government’s adherence to due process. The question of whether the federal government should be scanning Americans’ faces on a mass scale is “a real issue,” he said — “not some crazy concern of the far left and far right.” In January, the Department of Homeland Security’s inspector general announced an audit of the TSA’s use of facial biometric data. The move by Inspector General Joseph V. Cuffari Jr. came in response to a letter from Merkley, Kennedy and other senators from both parties requesting the inquiry. Among the others who signed on were Republicans Ted Cruz (Texas) and Roger Marshall (Kansas) and Democrat Edward J. Markey (Massachusetts). Cruz’s support could be key to the bill’s chances, given that he now chairs the Senate Commerce, Science and Transportation Committee. Privacy advocates and pro-tech groups differ on the technology’s trade-offs. “There’s maybe a little bit of unnecessary fear associated with biometrics, because it’s a futuristic-sounding technology and a lot of people don’t understand how it works,” said Daniel Castro, vice president of the Information Technology and Innovation Foundation, a nonprofit think tank that receives funding from tech firms. “It’s basically just matching: Is the person in front of the camera the same person” whose picture is on the traveler’s identification card? “The reality is computers are better at doing that kind of matching than people are,” Castro said. “So we are getting better security because of that.” Chris Gilliard, a digital privacy researcher and co-director of the nonprofit Critical Internet Studies Institute, countered that face recognition technology is “uniquely dangerous, unreliable, and a persistent threat to human rights.” “We are witnessing the real-time erosion of our privacy rights with few guardrails,” Gilliard said. “I welcome any effort to put the brakes on our slide into techno-authoritarianism.” | 
