Earlier this week the Senate Committee on Commerce, Science, and Transportation postponed  a scheduled hearing on a bill that would limit some uses of facial recognition by the  Transportation Security Administration (TSA), while authorizing the TSA to carry out “identity verification” of airline passengers and take mug shots of all those air travelers who don’t show an “approved identification document”.

The original version of the “Traveler Privacy Protection Act” as it was introduced in 2023 would have imposed a straightforward prohibition on use of facial recognition by the Transportation Security Administration (TSA) without explicit Congressional authorization: “The Administrator [of the TSA] may not, for any purpose, use facial recognition technology or facial matching software in any airport unless such use is expressly authorized by an Act of Congress enacted after the date of the enactment of this Act.”

It is, of course, a sign of how far beyond its legal authority the TSA has already gone that Congress would need to consider a bill to explicitly prohibit the TSA from exceeding the authority it has been granted by Congress. But that’s the situation we’re in.

The revised version of the bill put forward in 2024 as an amendment to the Federal Aviation Administration reauthorization act and reintroduced as a standalone bill in 2025 would authorize use of facial recognition by the TSA for “confirmation of the identity of a passenger before admittance to the sterile area of the airport,” provided travelers are given notice that being photographed is voluntary and that the TSA “does not subject passengers who choose the opt-out option to discriminatory treatment, additional screening requirements, less favorable screening conditions, or other unfavorable treatment.”

The revised bill would also mandate that the TSA, “for each passenger who chooses the opt-out option, performs identity verification using an approved identification document and without collecting any biometric information from such passenger… The [opt-out] option … does not apply with respect to a passenger— (i) who does not provide an acceptable form of identification at a security checkpoint; and (ii) whose identity the Administrator may need to verify through alternative measures to enter the sterile area.”

This bill would thus impose a new obligation on the TSA to carry out “identity verification”, leaving it ambiguous what (if anything) is required of travelers. But as we noted when this revised language was first introduced last year, despite the ambiguity in the bill,  it would for the first time create at least an arguable statutory basis for the TSA to claim — as it undoubtedly would claim, in a shift from its consistent admission to date in court that no law or regulation requires air travelers to show any ID — that airline passengers are required to identify themselves in some fashion, either through an approved ID document or facial recognition.

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