In October 2024, Lutzker & Lutzker (“L&L”) posted, as part of our IP Bits & Pieces® feature, an article on the use of optional facial recognition technology (“FRT”) by the Transportation Security Administration (“TSA”) at a growing number of federalized airports across the U.S. In addition, according to the U.S. Customs and Border Protection (“CPB”) website, the CBP has implemented facial biometrics in the entry process at all international airports and the exit process at 57 airport locations. CBP has also expanded facial biometrics at 39 seaports and all pedestrian lanes at the Southwest Border and the Northern Border ports of entry. According to the CPB, facial biometrics have prevented more than 2,000 impostors from entry into the U.S. (of the more than 540 million travelers processed at these sites). More recently, biometric scanning has been, or is in the process of being, implemented internationally, including in Canada, the United Kingdom, India, Thailand and the United Arab Emirates.

In the U.S., travelers, supported by a group of U.S. Senators, the ACLU and privacy advocates, have continued to raise concerns around the privacy risks, civil liberty infringements and the potential for algorithmic bias, hacks and abuse. Although all travelers on domestic flights have the right to opt out of facial scanning (as indicated on the TSA’s website), inexplicably the TSA posted signs vary by location, and travelers, including a U.S. Senator, have reported that they were denied the option.

On March 10, 2025, L&L was contacted by one such traveler – Dylan – who reported that he was not permitted to opt out at a U.S. airport, after he had placed his ID in the scanner. Dylan resisted, resulting in the TSA agent’s manager threatening to call the police and deny Dylan entry. Unable to risk missing his flight, Dylan submitted to the scan, but afterwards he wanted to do more.

L&L provided Dylan with information regarding his rights and the links to the forms to report his experience to the TSA and Department of Homeland Security (“DHS”). While it may require more effort by the agent, or their supervisor, it is not impossible or time-consuming to comply with the opt out after the ID has been scanned. Two weeks later, Dylan received a call from TSA at the airport where the incident occurred. Dylan was assured that the posted signs stating facial scanning was mandatory once a traveler’s ID had been scanned had been removed, and that other “corrective action” had been taken following receipt of his complaint.

Lutzker & Lutzker is experienced in advising clients on compliance with privacy law, but it is often when enough consumers and citizens refuse to accept overreaching by businesses, and even the U.S. government, that privacy guardrails are most effective. Thank you, Dylan.