No Scan, No Fly: The Future of Domestic Air Travel?

The Transportation Security Administration (TSA) is determined to force passengers guilty of no crime to submit to facial recognition scanning in order to board their flight. Some in Congress are fighting the move.

If you own an iPhone or iPad with FaceID, you know how convenient it is to be able to just hold up your device and have it unlock because it recognizes that the person holding the device is the one who actually owns it. It's an example of facial recognition technology (FRT) being used to increase consumer privacy and security, and it's more convenient than having to remember and then punch in a multi-digit security code.

TSA is also embracing FRT because of its convenience. They try to sell it as a convenience also to you, the airline passenger. But unlike the iPhone/FaceID example where you are in control and can chose whether or not to use FaceID, TSA is working hard to make certain that you must submit to FRT scanning if you want to catch your flight to Anywhere, USA. This push comes in spite of testing results by the Department of Homeland Security's own Science and Technology Directorate that show major issues with FRT accuracy involving people wearing glasses, a person's gender or their skin color.

As was reported by Forbes last year, TSA wants to expand its use of FRT at airports from the current 25 or so to more than 400. As Forbes noted in its piece, Senator Jeff Merkley (D-OR) was motivated to introduce the Traveler Privacy Protection Act of 2023 alongside Senator John Kennedy (R-LA) to impose a three-year moratorium on the deployment of FRT by TSA without explicit authorization by Congress. Merkley had a bad experience with the whole FRT "opt out" process (TSA claims you can opt out of FRT but they make it as difficult as possible in practice as Merkley discovered) which is one of the reasons he's offered his FRT moratorium legislation.

Late last week, Merkley tried but failed to get his TSA FRT moratorium language attached to the Federal Aviation Administration reauthorization bill. Merkley's efforts have drawn opposition from air travel trade groups, among others, who have a vested financial interest in maximizing the number of people who fly every year. But privacy and our constitutional rights are priceless, and we shouldn't let self-interested trade associations or taxpayer-funded government agencies subvert those rights.

What's usually missing from this debate is any effort to ask what to me is the obvious first order question: why does TSA even need to know who I am if I want to fly?

The answer is they don't, unless I'm wanted for a crime...and that's what "Most Wanted" posters or "Be On The Lookout" notifications are for. It's one thing for TSA or the Federal Marshal Service to detain someone already identified as being wanted for a crime. It's another thing entirely to demand that each traveler, in the absence of a criminal predicate, be forced to have their face scanned and stored by a government agency.

In 1999, the Supreme Court affirmed the right to travel as a basic constitutional right. But eight years later in 2007 it refused to hear a case challenging TSA’s use of nonpublic “Security Directives” to airlines requiring presentation of ID to board a flight.

Scanning people and bags for dangerous items makes sense as a security measure. If a dangerous prohibited item (firearm, incendiary device, etc) is found on a person or the luggage, then demanding ID and an explanation from the offender is absolutely called for.

But TSA has for years been stretching the law to force all of us to show an ID in order to board a flight we, not TSA, paid for. Now, they want to mandate FRT scanning as part of that process--something that absolutely qualifies as a form of mass surveillance, if not de facto population control. It treats every member of the traveling public as a suspect first and a citizen a very distant second. Those are the methods employed by authoritarian or totalitarian governments like Communist China and the Russian Federation--methods that are totally antithetical to the Bill of Rights.

Whether Merkley will seek to prohibit funding for TSA's FRT expansion via the appropriations process when the government funding debate resumes after Labor Day is, at the moment, unknown. One thing is certain. Unless the notional champions of the Bill of Rights in Congress take stronger action and soon, the flying public will have to decide whether to submit to another "Big Brother" assault on their constitutional rights in order to fly or to consider road tripping instead.

If you live in Oregon, consider dropping Senator Merkley a line to 1) thank him for offering his existing bill & trying to tack it onto the FAA reauthorization bill and 2) encourage him to try to get language in a must-pass appropriations bill or other bill that would defund TSA's FRT program. If you live elsewhere, consider dropping your own House and Senate members a note 1) encouraging them to sign onto Merkley's existing legislation and 2) to support defunding of TSA FRT program.

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