Behavior Detection as Interrogation
With the Department of Homeland Security constantly spinning out new projects and programs (plus re-branded old ones) to investigate you, me, and the kitchen sink, it’s sometimes hard to keep up. But I was intrigued with a report that behvaior detection officers are getting another look from the Transportation Security Administration. Behavior detection is the unproven, and so far highly unsuccessful (Rittgers, Harper), program premised on the idea that telltale cues can reliably and cost-effectively indicate intent to do harm at airports.
But there’s a new behavior detection program already underway. Or is it interrogation?
Due to a bottleneck at the magnetometers in one concourse of the San Francisco airport (no strip-search machines!), I recently had the chance to briefly interview a Transportation Security Administration agent about a new security technique he was implementing. As each passenger reached him, he would begin to examine the traveler’s documentation and simultaneously ask the person’s last name. He confirmed to me that the purpose was to detect people who did not immediately, easily, and accurately respond. In thousands of interactions, he would quickly and naturally learn to detect obfuscation on the part of anyone carrying an ID that does not have the last name they usually use.
As a way of helping to confirm identity, it’s a straightforward and sensible technique. Almost everyone knows his or her last name, and quickly and easily repeats it. The average TSA agent with some level of experience will fluently detect people who do not quickly and easily repeat the name on the identity card they carry. The examination is done quickly. This epistemetric check (of a “something-you-know” identifier—see my book, Identity Crisis) occurs during the brief time that the documents are already getting visual examination.
Some people will not repeat their name consistent with custom, of course. The hard of hearing, speakers of foreign languages, people who are very nervous, people who have speech or other communication impediments, and another group of sufferers—recently married women—may exhibit “suspicious” failure to recite their recently changed surnames. Some of these anomalies TSA agents will quickly and easily dismiss as non-suspicious. Others they won’t, and in marginal cases they might use non-suspicious indicia like ethnicity or rudeness to adjudge someone “suspicious.”
The question whether these false positives are a problem depends on the sanction that attaches to suspicion. If a stutterer gets a gauntlet at the airport each time he or she fails to rattle off a name, the cost of the technique grows compared to the value of catching … not the small number of people who travel on false identification—the extremely small number of people who travel on false identification so as to menace air transportation.
After bin Laden
As Chris Preble noted early Monday morning, Osama bin Laden is dead. In addition to celebrating V-OBL Day, we should take a moment to reflect on wars of the last decade and the civil liberties we have sacrificed since September 11, 2001. Malou Innocent makes the case for reconsidering our foreign policy, and Jim Harper asks if he can have his airport back. We lay out these thoughts in more detail in this Cato video, After bin Laden.
The phrase “after bin Laden” has a nice ring to it. Cato held counterterrorism conferences in 2009 and 2010, and there’s more Cato work on counterterrorism and homeland security here.
Can I Have My Airport Back Please?
Even while it was a rumor that President Obama would announce that Osama bin Laden had been killed, Americans began to digest the ramifications, asking, for example, “can I have my airport back please?”
Pleasing though it is to have in contemplation, the question is premature. Students of terrorism, such as those who attended our 2009 and 2010 counterterrorism conferences, know that the killing of bin Laden will have little direct effect on the network he spawned. Its indirect, discouraging effect on terrorism is something I mused about in an earlier post.
What about the effects on the rest of us, the people and actors in our great counterterrorism policymaking apparatus?
Osama bin Laden’s survival helped shore up the mystique of the terrorist supervillain, which has fed counterterrorism excess such as the Transportation Security Administration’s domestic airport security gauntlet. Now that bin Laden is gone, the public will be more willing to carefully balance security and privacy in our free country. By a small, but important margin, courts will be less willing to indulge extravagant government claims about threat and risk.
My friends in the national security bureaucracy may honestly perceive the contraction in their power as carelessness about a threat that they have dedicated their professional lives to combating, but the Declaration of Independence touts security only once, and freedom twice, in the phrase “life, liberty, and the pursuit of happiness.” The counterterrorism debate continues.
‘Give Thanks for the TSA’?
My Washington Examiner column this week covers two developments last week that may make you somewhat less likely to “Give Thanks for the TSA” as former Bush speechwriter Marc Thiessen urged on National Review’s website.
The first is the viral video of a TSA agent at New Orleans airport giving the “freedom fondle” to a six-year-old girl. The second is Friday’s revelation that among the “behavioral indicators” TSA uses to scope out travelers who deserve extra manhandling is the “arrogant” expression of “contempt against airport passenger procedures.”
Because, clearly, making a scene on an airport security line is sound strategy for anyone trying to sneak a bomb onto a plane.
Is it possible that anyone with an IQ above room temperature buys that logic?
A lot of Al Qaeda terrorists are pretty dumb. But it seems doubtful that they’re that dumb.
The column looks at what our willingness to submit to this sort of thing says about “American Exceptionalism”:
There’s been a lot of talk lately about “American Exceptionalism,” and whether President Obama understands what makes America stand out among the family of nations.
I’ve always thought that what makes Americans exceptional is our ornery resistance to being bossed around….
Neoconservatives see America’s uniqueness as an excuse to bomb any country that looks at us crosswise. But the original idea was somewhat less aggressive. With “every spot of the old world… overrun with oppression,” America would be freedom’s home — an “asylum for mankind” — as Thomas Paine put it in Common Sense.
In the 1992 film adaptation of “Last of the Mohicans,” James Fenimore Cooper’s novel about the Seven Years War, there’s an exchange that illustrates American Exceptionalism at its best. An effete British officer berates the rough-hewn colonial “Hawkeye”: “You call yourself a loyal subject to the Crown?”
“Don’t call myself ‘subject’ to much at all,” Hawkeye replies.
You have to wonder how long that spirit can survive in a world where official federal policy requires you to stand by placidly while agents of the state run their rubber gloves under your innocent 6-year-old daughter’s waistband. And it’s far from clear that these procedures are even making us any safer.
TSA’s Pistole Says ‘Risk-Based,’ Means ‘Privacy Invasive’
There is one thing you can take to the bank from TSA administrator John Pistole’s statement that he wants to shift to “risk-based” screening at airports: it hasn’t been risk-based up to now. That’s a welcome concession because, as I’ve said before, the DHS and its officials routinely mouth risk terminology, but rarely subject themselves to the rigor of actual risk analysis.
What Administrator Pistole envisions is nothing new. It’s the idea of checking the backgrounds of air travelers more deeply, attempting to determine which of them present less of a threat and which prevent more. That opens security holes that the risk-averse TSA is unlikely to actually tolerate, and it has significant privacy and Due Process consequences, including migration toward a national ID system.
I wrote about one plan for a “trusted traveler”-type system recently. As the details of what Pistole envisions emerge, I’ll look forward to reviewing it.
The DHS Privacy Committee published a document several years ago that can help Pistole with developing an actual risk-based system and with managing its privacy consequences. The Privacy Committee itself exists to review programs like these, but has not been used for this purpose recently despite claims that it has.
If Pistole wants to shift to risk-based screening, he should require a full risk-based study of airport screening and publish it so that the public, commentators, and courts can compare the actual security benefits of the TSA’s policies with their costs in dollars, risk transfer, privacy, and constitutional values.
Man Acquitted of Crimes Associated with Asserting His Rights
(HT: Techdirt) It is infuriating to watch the video Phil Mocek made while attempting to assert his legal rights at the airport. The good news is that he has been acquitted of the bogus charges brought against him, including disorderly conduct, concealing his identity, refusing to obey a police officer, and criminal trespass.
The video illustrates the knowledge, fortitude, and cool it takes to assert one’s rights. We owe our thanks to Mr. Mocek, who has helped to educate the TSA and society in general about the law that applies at the airport.
Perhaps he can further the educational process by bringing an action under 42 U.S.C. §1983 for violation of his civil rights under color of law. The Transporation Security Administration’s training programs might improve, or Congress might pay attention to the constitutional black hole they have created in airports—if it costs enough to threaten their earmark money.
Rep. Clyburn Wants Special Treatment at Airports
It’s fascinating to watch a member of Congress use a tragedy like Gabrielle Giffords’ shooting to seek advantage over us common folk. On Fox News Sunday this week, Representative James Clyburn (D-SC) suggested that Members of Congress should get special treatment at airports.
Airports are some of the safest places anyone can be. Don’t use your imagination—think about it: Airports teem with security personnel and security-conscious citizens. Because their travel schedules are generally unannounced, members of Congress are not any more exposed while traveling than during their other public movements. There is some risk—we know too well because of this weekend’s tragedy—when elected officials make announced public appearances, but that small risk is something they should generally continue to accept lest they fall even further out of touch with constituents.
It is vitally important that members of Congress experience air travel as the rest of us do. If they don’t, they will continue to impose its burdens on us without getting the valuable feedback of first-hand experience.
Worth a Thousand Words
Presented without comment. Image here, HT to Uncle.
For more Cato work on the TSA, see “Body Scanners: The Naked Truth,” “On Air Security, We are the Ones We’ve Been Waiting For,” and “TSA Searches, Bomb Risk Near Zero.”
Jim Harper has some blog posts on the topic as well: here, here, here, and here.
Conservatives, Liberals, and the TSA
Libertarians often debate whether conservatives or liberals are more friendly to liberty. We often fall back on the idea that conservatives tend to support economic liberties but not civil liberties, while liberals support civil liberties but not economic liberties — though this old bromide hardly accounts for the economic policies of President Bush or the war-on-drugs-and-terror-and-Iraq policies of President Obama.
Score one for the conservatives in the surging outrage over the Transportation Security Administration’s new policy of body scanners and intimate pat-downs. You gotta figure you’ve gone too far in the violation of civil liberties when you’ve lost Rick Santorum, George Will, Kathleen Parker, and Charles Krauthammer. (Gene Healy points out that conservatives are reaping what they sowed.)
Meanwhile, where are the liberals outraged at this government intrusiveness? Where is Paul Krugman? Where is Arianna? Where is Frank Rich? Where is the New Republic? Oh sure, civil libertarians like Glenn Greenwald have criticized TSA excesses. But mainstream liberals have rallied around the Department of Homeland Security and its naked pictures: Dana Milbank channels John (“phantoms of lost liberty”) Ashcroft: “Republicans are providing the comfort [to our enemies]. They are objecting loudly to new airport security measures.” Ruth Marcus: “Don’t touch my junk? Grow up, America.” Eugene Robinson: “Be patient with the TSA.” Amitai Etzioni in the New Republic: “In defense of the ‘virtual strip-search.’” And finally, the editors of the New York Times: ”attacks are purely partisan and ideological.”
Could this just be a matter of viewing everything through a partisan lens? Liberals rally around the DHS of President Obama and Secretary Napolitano, while conservatives criticize it? Maybe. And although Slate refers to the opponents of body-scanning as “paranoid zealots,” that term would certainly seem to apply to apply to Mark Ames and Yasha Levine of the Nation, who stomp their feet, get red in the face, and declare every privacy advocate from John Tyner (“don’t touch my junk”) on to be “astroturf” tools of “Washington Lobbyists and Koch-Funded Libertarians.” (Glenn Greenwald took the article apart line by line.)
Most Americans want to be protected from terrorism and also to avoid unnecessary intrusions on liberty, privacy, and commerce. Security issues can be complex. A case can be made for the TSA’s new procedures. But it’s striking to see how many conservatives think the TSA has gone too far, and how dismissive — even contemptuous — liberals are of rising concerns about liberty and privacy.
Privacy and the Common Good
Jim Harper’s post Monday, responding to communitarian Amitai Etzioni on “strip search” scanners at airports, gives me an opportunity to mount one of my hobbyhorses.
My beef with Etzioni’s conclusory argument isn’t just that, as Jim observes, he purports to “weigh” the individual right to privacy against the common good (here in the guise of “security”) without any real analysis of the magnitudes on both sides. It’s that his framing is fundamentally backwards. The importance of privacy is, to a great extent, a function of its collective dimension—a point to which you’d think a communitarian theorist who’s written an entire book on privacy would be more keenly attuned. If I may indulge in a little self-quotation:
[W]hen we talk about our First Amendment right to free speech, we understand it has a certain dual character: That there’s an individual right grounded in the equal dignity of free citizens that’s violated whenever I’m prohibited from expressing my views. But also a common or collective good that is an important structural precondition of democracy. As a citizen subject to democratic laws, I have a vested interest in the freedom of political discourse whether or not I personally want to [engage in]–or even listen to–controversial speech. Looking at the incredible scope of documented intelligence abuses from the ’60s and ’70s, we can add that I have an interest in knowing whether government officials are trying to silence or intimidate inconvenient journalists, activists, or even legislators. Censorship and arrest are blunt tactics I can see and protest; blackmail or a calculated leak that brings public disgrace are not so obvious. As legal scholar Bill Stuntz has argued, the Founders understood the structural value of the Fourth Amendment as a complement to the First, because it is very hard to make it a crime to pray the wrong way or to discuss radical politics if the police can’t arbitrarily see what people are doing or writing in their homes.
I’m actually somewhat sympathetic to the notion that the individual harms that result from strip scanners are relatively slight, especially when passengers can opt for a pat down instead. In the worst case scenario, some unscrupulous TSA employee might find a way to save and circulate some of these blurry quasi-nude images, the embarrassment potential of which is likely to be mitigated by the fact that the x-ray view doesn’t really show an identifiable face.
I’m much more concerned about the social effect of making such machines commonplace—of creating a general norm that people who wish to engage in routine travel must expect to expose themselves in this way. As Michel Foucault famously observed, surveillance is not merely the passive gathering of information; it exerts a “disciplinary” power, creating what he called “docile bodies.” The airport becomes a schoolhouse whose lesson is that not even the most intimate spaces escape the gaze of authority.
TSA on the Prowl for Embezzlers
The TSA is exceeding its authority.
At what point does an airport search step over the line?
How about when they start going through your checks, and the police call your husband, suspicious you were clearing out the bank account?
This kind of thing was supposed to stop after the TSA revised its policies a year ago. The revision came in the wake of the unconstitutional seizure of Campaign for Liberty staffer Steven Bierfeldt for carrying cash donations (prompting a lawsuit from the ACLU). A federal judge had already determined that fake passports found on an airline passenger were inadmissible in court.
The TSA is not a law enforcement agency. TSA screeners aren’t supposed to search for anything beyond weapons and explosives. Or, as TSA policy currently reads, “Screening may not be conducted to detect evidence of crimes unrelated to transportation security.”
Kathy Parker, a business support manager for a large bank, was flying with a deposit slip and several checks made out to her and her husband. TSA screeners suspected she was skipping town in the midst of a “divorce situation.”
Two Philadelphia police officers joined at least four TSA officers who had gathered around her. After conferring with the TSA screeners, one of the Philadelphia officers told her he was there because her checks were numbered sequentially, which she says they were not.
“It’s an indication you’ve embezzled these checks,” she says the police officer told her. He also told her she appeared nervous. She hadn’t before that moment, she says.
She protested when the officer started to walk away with the checks. “That’s my money,” she remembers saying. The officer’s reply? “It’s not your money.”
Glad to see that we’re in good hands, and that no one has lost focus on the aviation security mission at TSA. Read the whole thing.
Stunner: Strip-Search Machine Used to Ogle
An airport security staffer faces discipline after using a whole-body imaging machine to ogle a co-worker, according to this report. It’s another signal of what’s to come when the machines are in regular use. (In a previous post, I aired my doubts about the veracity of reports that a famous Indian movie star had been exposed, but the story foretells the future all the same.)
I’ve written before that whole-body imaging machines in airports create risks to privacy despite TSA’s efforts to minimize those risks with carefully designed rules and practices.
Rules, of course, were made to be broken, and it’s only a matter of time — federal law or not — before TSA agents without proper supervision find a way to capture images contrary to policy. (Agent in secure area guides Hollywood starlet to strip search machine, sends SMS message to image reviewer, who takes camera-phone snap. TMZ devotes a week to the story, and the ensuing investigation reveals that this has been happening at airports throughout the country to hundreds of women travelers.)
Rules against misuse of whole-body imaging are fine, but they are not a long-term, effective protection against abuse of “strip-search machines.”
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