ICE Out of Our Faces Act

A new bill would ban ICE and CBP from using facial recognition entirely. The coalition behind it is massive.

TL;DR: On February 5, 2026, four members of Congress introduced the ICE Out of Our Faces Act: a bill that would ban ICE and CBP from buying or using facial recognition technology, require deletion of all biometric data already collected, and let individuals and state attorneys general sue for civil penalties. The bill has backing from the ACLU, EFF, EPIC, Fight for the Future, Human Rights First, Free Press Action, Access Now, and the Leadership Conference. It's the most aggressive federal facial recognition ban ever proposed for immigration enforcement.

What the Bill Does

The ICE Out of Our Faces Act, introduced by Senators Edward Markey, Jeff Merkley, and Ron Wyden alongside Representative Pramila Jayapal, takes a scorched-earth approach to ICE and CBP's facial recognition programs [1][2]:

  • Bans acquisition and use of facial recognition technology by ICE and CBP. Not restricts. Not regulates. Bans.
  • Bans other biometric identification systems: not just face scanning, but the broader biometric surveillance toolkit.
  • Requires data deletion: all biometric data collected for use in or by these systems must be destroyed.
  • Creates civil penalties: individuals who are scanned in violation of the ban can sue. State attorneys general can too.

That last point matters. This isn't just a policy directive that the next administration can delete with a memo. It creates a legal enforcement mechanism that puts teeth behind the ban.

Why Now

The bill lands in the middle of an escalating federal facial recognition crisis. Here's what's happened in the past three months:

  • Bloomberg revealed that ICE's Mobile Fortify app searches a 1.2 billion image database, six times larger than previously disclosed.
  • ICE agents have used facial recognition on protesters and legal observers, revoking Global Entry privileges of people who watched ICE operations.
  • A federal lawsuit by Illinois and Chicago exposed that Mobile Fortify was deployed while still in beta, without required privacy impact assessments.
  • DHS rescinded its own facial recognition safeguards (Directive 026-11, described as the most extensive such policy at any federal agency) and replaced it with nothing.

Senator Markey didn't mince words: "ICE and CBP agents are using facial recognition technologies to track, target, and surveil individuals across the country. The Trump administration isn't deploying these tools to maintain public safety. They are doing so to silence lawful speech and to punish dissent" [1].

The Sponsors Sound the Alarm

Representative Jayapal called it what it is: "This has become a surveillance state with militarized federal troops on our streets to terrorize and intimidate US citizens and residents alike. We must urgently pass the ICE Out of Our Faces Act to stop the proliferation of this technology, protect our communities, and protect our democracy" [1].

Senator Merkley, who's been pushing facial recognition restrictions for years, noted the escalation: "Now, we're seeing Trump's lawless federal agents deploy this technology on our streets across the nation as he tries to tighten his authoritarian grip. Without oversight, this technology is dangerous in the hands of any government" [2].

Senator Wyden was blunter: "ICE and CBP have trampled on our Constitution when they build databases of regular people concerned about ICE committing violence in their communities or scan the faces of people on the street to run through their surveillance systems" [2].

The Coalition

Eight major civil liberties organizations endorsed the bill on day one. That rarely happens this fast.

India McKinney, EFF's Director of Federal Affairs, said the quiet part loud: "Face surveillance in the hands of the government is a fundamentally harmful technology, even under strict regulations or if the technology was 100% accurate" [1]. That's significant. EFF isn't arguing for better rules. They're arguing the technology itself is the problem.

Kate Voigt, ACLU Senior Policy Counsel, connected the money to the abuse: "Since Congress gave ICE and Border Patrol hundreds of billions of dollars in unnecessary funding last year, the Trump administration has doubled down on the use of shadowy surveillance technology to supercharge its lawless and violent immigration operations" [1].

Jeramie D. Scott, EPIC's Surveillance Oversight Director, focused on the oversight vacuum: "Facial recognition is a dangerous and invasive surveillance technology, particularly in the hands of an agency that is cavalier with the law, lacks transparency, and avoids oversight" [2].

Lia Holland from Fight for the Future went furthest: "We cannot let this regime of data-supercharged fascist witness intimidation become the new normal. It is time to ban facial recognition for good and banning ICE from using it is a great start" [1].

Jenna Ruddock of Free Press Action named the global pattern: "Facial recognition and other biometric surveillance technologies have been used by authoritarian regimes around the world to target journalists, protestors, and marginalized communities. We are watching these abuses evolve as DHS pours more money into expanding its own surveillance dragnet" [2].

How It Fits the Legislative Landscape

This isn't the first time Congress has tried to rein in federal facial recognition. But the previous efforts have been narrower:

  • Rep. Bennie Thompson's bill would ban Mobile Fortify outside ports of entry and require citizen data deletion within 12 hours, but wouldn't ban the technology entirely.
  • Nine senators demanded ICE stop using Mobile Fortify in September 2025. ICE ignored the deadline. And the November follow-up.
  • The ICE OUT Act (different bill, similar name) targets qualified immunity for ICE agents: accountability, not technology.

The ICE Out of Our Faces Act goes further than any of these. It doesn't try to regulate facial recognition at ICE. It bans it. And the data deletion requirement would force destruction of biometric records already collected, a provision that directly targets the 1.2 billion image database that DHS has built.

Will It Pass?

Let's be honest: in the current Congress, a bill banning ICE surveillance tools faces steep odds. The same administration that's deploying Mobile Fortify isn't going to support restricting it.

But that's not the only measure of success. Bills like this do three things even when they don't become law:

  1. They create a legislative record: official congressional documentation of the technology's abuses, backed by evidence and expert testimony.
  2. They force the debate: members of Congress have to take a position. Silence becomes a choice.
  3. They set the template: when political conditions change, the bill text is ready. The coalition is built. The arguments are documented.

Senator Markey has been here before. His facial recognition moratorium bills in previous sessions didn't pass either. But the language and framework from those bills show up in state and local bans that did pass, from Portland to San Francisco to King County, Washington.

What Happens Next

The bill needs committee assignment, hearings, and enough co-sponsors to signal momentum. Senators Alsobrooks and Sanders are already on board as additional co-sponsors [1].

Meanwhile, ICE will keep scanning faces. The 1.2 billion image database will keep growing. Mobile Fortify agents will keep pointing phones at people on the street.

The question this bill forces is simple: Does Congress believe federal agents should be able to scan your face against a billion-photo database without a warrant, without your consent, and without any way for you to say no?

Right now, the answer is yes. This bill says it should be no.

Sources

  1. Rep. Jayapal: Markey, Jayapal, Merkley, Wyden Introduce Bill to Ban ICE and CBP Use of Facial Recognition Technology (February 5, 2026)
  2. Sen. Markey: Introduce Bill to Ban ICE and CBP Use of Facial Recognition Technology Amid Trump's Rapidly Growing Surveillance State (February 5, 2026)
  3. Daily Hampshire Gazette: Sen. Markey introduces ICE Out of Our Faces Act (February 5, 2026)
  4. WWLP: Technology in crosshairs of facial recognition, data privacy reforms (February 2026)

Published: February 6, 2026