In an on-stage interview yesterday at South By Southwest by a reporter for the Dallas Morning News, the head of the US Transportation Security Administration made explicit that the TSA plans to make collection of biometric data mandatory for airline travel:
According to a report in today’s edition of the newspaper by Alexandra Skores on the statements by TSA Administrator David Pekoske:
Biometric technology, such as facial recognition, is increasingly being used in TSA’s identity verification process….
He said passengers can also choose to opt out of certain screening processes if they are uncomfortable, for now. Eventually, biometrics won’t be optional, he said.
TSA Privacy Impact Assessments have claimed that air travelers could, for now, opt out, of mug shots, but the TSA has never complied with the notice requirements in the federal Privacy Act and Paperwork Reduction Act (PRA).
So far as we can tell, there’s never been any PRA approval for collection of biometrics from domestic air travelers, or any PRA notice at a TSA checkpoint.
Since the TSA has never applied to the Office of Management and Budget (OMB) for approval of this information collection, as required by the PRA, we don’t know what legal basis it would claim for this collection of biometric information.
As at US Customs and Border Protection inspection stations and kiosks for international travelers, domestic travelers asked to submit to mug shots at TSA checkpoints are protected not only by the US Constitution and international treaties but also by federal laws including the PRA. As with declining to show ID or provide other information, you have the right not to provide biometric information unless and until the TSA gets approval from OMB to collect this information, and provides notices that comply with the PRA.
In 2021, the TSA tried to get Congress to exempt some of its activities from the PRA. But Congress turned it down, making clear that Congress intends the PRA to apply to the TSA.
For now, it remains the law (44 U.S.C. § 3512) that:
(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to this subchapter if—
(1) the collection of information does not display a valid control number assigned by the Director [of the Office of Management and Budget] in accordance with this subchapter; or
(2) the agency fails to inform the person who is to respond to the collection of information that such person is not required to respond to the collection of information unless it displays a valid control number.
(b) The protection provided by this section may be raised in the form of a complete defense, bar, or otherwise at any time during the agency administrative process or judicial action applicable thereto.
Unless and until this changes, no matter what the TSA says, you do have the right to opt of facial imaging at TSA checkpoints.