Review of the Big REAL ID Hearing
The Senate Homeland Security and Governmental Affairs Committee held a hearing yesterday on the REAL ID Act and the REAL ID revival bill, known as PASS ID. I attended and want to share with you some highlights.
Good News!
Little good came from the hearing, as it was primarily focused on how to get the states and people to accept a national ID. But there is some good news.
First, Department of Homeland Security Secretary Janet Napolitano declared REAL ID dead (much as I did in my testimony two-plus years ago). “DOA” is how she referred to it.
She also said that no state will be in compliance with REAL ID by the current December 31, 2009 deadline. This is important because a lot of people think that states doing anything about the security of drivers’ licenses and ID cards are complying with REAL ID.
Another highlight was the commentary of Senator Roland Burris (D-IL). He is a beleaguered outsider to the Senate and evidently wasn’t coached on the talking points around REAL ID and PASS ID. So he flat out asked why we shouldn’t just have “a national ID.”
Senator Susan Collins’ (R-ME) nervous smile was particularly noticeable when Burris asked why the emperor had no clothes. No one was supposed to talk about national IDs at this hearing! But that’s what PASS ID is.
REAL ID and PASS ID are two versions of the same national ID system, and nobody is denying it. That’s good news because the effort to rebrand REAL ID through PASS ID has failed.
Making Airline Travel as Unpleasant as Possible
The Transportation Safety Administration long has made air travel as unpleasant as possible without obvious regard to the impact on safety. Thankfully, the TSA recently dropped the inane procedure of asking to see your boarding pass as you passed through the checkpoint — a few feet away from where you entered the security line, at which point you had shown both your boarding pass and ID.
However, there are proposals afoot in Congress to set new carry-on luggage restrictions, to be enforced by the TSA, even though they would do nothing to enhance security. An inch either way on the heighth or width of a bag wouldn’t help any terrorists intent on taking over an airplane. But the proposed restrictions would inconvenience travelers and allow the airlines to fob off on government what should be their own responsibility for setting luggage standards.
TSA also has restarted ad hoc inspections of boarding passengers. At least flights as well as passengers are targeted randomly. After 9/11 the TSA conducted secondary inspections for every flight. The process suggested that the initial inspections were unreliable, delayed passengers, and led experienced flyers to game the process. It was critical to try to hit the front of the line while the inspectors were busy bothering someone else. There was no full-proof system, but I learned that being first or second in line was particularly dangerous.
Finally TSA dropped the practice. And, as far as I am aware, no planes were hijacked or terrorist acts committed as a result. But TSA recently restarted the inspections, though on a random basis.
I had to remember my old lessons last week, when I ran into the routine on my return home from a trip during which I addressed students about liberty. Luckily I was able to get on board, rather than get stuck as TSA personnel pawed through bags already screened at the security check point.
There’s no fool-proof way to ensure security for air travel. Unfortunately, it’s a lot easier to inconvenience passengers while only looking like one is ensuring airline security.
Filed under: Government and Politics; Law and Civil Liberties; Regulatory Studies
TSA Search Overturned
A federal judge just threw out three fake passports discovered by a Transportation Security Agency (TSA) screener, holding that the search exceeded the TSA’s aviation security mission. (H/T Bruce Schneier)
This is long overdue; the TSA has moved beyond its original mandate and is now conducting searches for “contraband.” The search for anything that seems suspicious can quickly turn into an inquisition at the security checkpoint. Campaign for Liberty staffer Steven Bierfeldt experienced this at the St. Louis airport, and is now suing to prevent future searches beyond what is necessary for aviation security.
The invasive searches don’t add much to airline security anyway. Just as GAO investigators consistently defeat security at federal buildings, TSA screeners often fail to find fake explosives on security test teams.
As Bruce Schneier points out in his excellent book, Beyond Fear: Thinking Sensibly About Security in an Uncertain World, the two effective changes in airline security since September 11, 2001 have been (1) hardening of cockpit doors; and (2) airline passengers will resist because they know that their hijackers are playing for keeps.
Schneier spoke at Cato’s two-day conference on counterterrorism in January. Video at the link.
Schneier and Friends on Fixing Airport Security
Security guru Bruce Schneier comes down on the strictly pragmatic side in this essay called “Fixing Airport Security.” Because of terrorism fears, he says, TSA checkpoints are “here to stay.” The rules should be made more transparent. He also argues for an amendment to some constitutional doctrines:
The Constitution provides us, both Americans and visitors to America, with strong protections against invasive police searches. Two exceptions come into play at airport security checkpoints. The first is “implied consent,” which means that you cannot refuse to be searched; your consent is implied when you purchased your ticket. And the second is “plain view,” which means that if the TSA officer happens to see something unrelated to airport security while screening you, he is allowed to act on that. Both of these principles are well established and make sense, but it’s their combination that turns airport security checkpoints into police-state-like checkpoints.
The comments turn up an important recent Fourth Amendment decision circumscribing TSA searches. In a case called United States v. Fofana, the district court for the southern district of Ohio held that a search of passenger bags going beyond what was necessary to detect articles dangerous to air transportation violated the Fourth Amendment. “[T]he need for heightened security does not render every conceivable checkpoint search procedure constitutionally reasonable,” wrote the court.
Application of this rule throughout the country would not end the “police-state-like checkpoint,” but at least rummaging of our things for non-air-travel-security would be restrained.
I prefer principle over pragmatism and would get rid of TSA.
Filed under: Foreign Policy and National Security; Telecom, Internet & Information Policy
Bierfeldt v. Napolitano Roundup
Back on March 29th, Campaign for Liberty employee Steven Bierfeldt was leaving the Campaign’s regional conference in St. Louis, Missouri. He was carrying $4700 in cash donations and Campaign for Liberty and Ron Paul literature. TSA personnel at the St. Louis airport felt that carrying this amount of cash was “suspicious” and detained him for interrogation. The TSA personnel intended to take Bierfeldt to the local police station for further questioning after he refused to answer the questions associated with their fishing expedition. Luckily, a plainclothes officer arrived and spoke briefly with one of the TSA officers, who told Bierfeldt that he was free to go.
Bierfeldt is now filing suit against Secretary of the Department of Homeland Security Janet Napolitano. The ACLU Blog of Rights has more on the suit, including a digital copy of the complaint. Filing suit to prove that “[c]arrying $4700 in cash poses no conceivable threat to flight safety” is a sign that airport screening is going too far.
Bierfeldt was right to be wary of airport screening while carrying Ron Paul and Campaign for Liberty literature. The Missouri Information Analysis Center, one of 70+ “fusion centers” in the nation, had just released its report on domestic terrorism and the militia movement. Libertarians are expressly targeted as potential domestic terrorists:
Cato recently held a forum on this phenomenon, Fusion Centers: Domestic Spying or Sensible Surveillance? My colleague Tim Lynch hosted, and panelists included Bruce Fein, Constitutional Attorney, The Lichfield Group; Harvey Eisenberg, Chief, National Security Section, Office of United States Attorney, District of Maryland; and Michael German, Policy Counsel, American Civil Liberties Union. Audio and video are available at the link.
Mike German has written extensively on this topic. Read his November 2007 report, What’s Wrong with Fusion Centers and July 2008 update. Mike is a former FBI agent and author of the excellent book, Thinking Like a Terrorist.
You can watch Mr. Bierfeldt giving his side of the story to Judge Andrew Napolitano (no relation to Homeland Secretary Janet Napolitano) on Fox’s Freedom Watch.
Judge Napolitano recently spoke at the Cato book forum, Dred Scott’s Revenge: A Legal History of Race and Freedom in America. Co-panelists included my colleague Jason Kuznicki and Reason’s Damon Root.
Is the REAL ID Revival Bill, “PASS ID,” a National ID?
With the move in the Senate to revive our moribund national ID law, the REAL ID Act, under the name “PASS ID,” it’s important to look at whether we’re still dealing with a national ID law. My assessment is that we are.
First, PASS ID is modeled directly on REAL ID. The structure and major provisions of the two bills are the same. Just like REAL ID, PASS ID sets national standards for identity cards and drivers’ licenses, withholding federal recognition if they are not met.
There is no precise definition of a national identification card or system, of course, but its elements are relatively easy to identify.
First, it is national. That is, it is intended to be used throughout the country, and to be nationally uniform in its key elements. REAL ID and PASS ID have the exact same purpose – to create a nationally uniform identity system.
Second, its possession or use is either practically or legally required. A card or system that is one of many options for proving identity or other information is not a national ID if people can decline to use it and still easily access goods, services, or infrastructure. But if law or regulation make it very difficult to avoid carrying or using a card, this presses it into the national ID category.
Neither REAL ID nor PASS ID directly mandate carrying a card. Doing so would be too obviously a national ID system, and politically unpalatable. But both seek to take advantage of the state driver licensing system, and they do that for a reason: Carrying a driver’s license is a practical requirement in most parts of the country, where the automobile reigns supreme as the mode of travel.
But maybe states would decline to participate. Nothing in the PASS ID Act directly requires states to implement the system, and they are entirely free to issue non-compliant licenses and ID cards. But this was also true of REAL ID – because of the constitutional rule that the federal government cannot commandeer the organs of state government. (The case is New York v. United States.)
What both REAL ID and PASS ID do is make it difficult for state residents to function without their nationally standardized ID. They both require the nationally standardized ID to enter federal facilities (perhaps fewer of them under PASS ID), to access nuclear power plants, and to board aircraft.
But the PASS ID bill has specific language saying that a person can’t be denied boarding because they don’t have a national ID. Isn’t that an improvement? It sounds like it, but that language simply restates the rules that exist under REAL ID.
House Votes against “Strip-Search” Machines
Yesterday the House adopted an amendment to the Transportation Security Administration Authorization Act that would prohibit the TSA from using Whole Body-Imaging machines for primary screening at airports and require the TSA to give passengers the option of a pat-down search in place of going through a WBI machine, among other things.
You can read the amendment here, and the roll call vote will soon be up here. Use it to decide whether to cheer or jeer your member of Congress.
More on strip-search machines here, here, and here.
Filed under: Foreign Policy and National Security; Telecom, Internet & Information Policy
House to Consider Ban on Body Scans
. . . or at least serious limitations, NextGov reports.
Something like the bill I discussed in a previous post may be included in the TSA Authorization Act. I wrote some about “strip search machines” back in February, too.
Filed under: Foreign Policy and National Security; Telecom, Internet & Information Policy
It Is a Checkpoint, After All
The Philadelphia Inquirer asks why the TSA didn’t catch Bonnie Sweeten absconding to Orlando at the airport after faking her own and her daughter’s abduction.
The TSA and FBI are right: it’s not airport security’s job to look for people like Bonnie Sweeten. But they will quickly agree to make it part of their mission when newspapers and Members of Congress start to say they should. This is how a nominal airline security program transmogrifies into a general law enforcement checkpoint, and the noose tightens on your right to travel.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Congress to TSA: No Cheating
H.R. 2464, introduced yesterday, would prohibit the Transportation Security Administration from giving advance notice to security screeners when they are going to be covertly tested.
Does it need saying that tipping off screeners undermines the value of testing? Does TSA need a law to make it not do that?
Tightening the Noose Around the Right to Travel
Ask anyone who has experienced life in a country where freedom of movement is not recognized, and you’ll come away impressed with the importance of having the right to travel. That right takes another step back in the United States today.
Today the federal government takes over from airlines the process of running passengers against its terrorist watch lists. This means that when you fly, the Transportation Security Administration now requires airlines to give the government your full name, your itinerary, your date of birth, your gender, and an optional “redress number.”
Running names against watch lists does not secure against even modestly sophisticated attackers — 17 of 19 9/11 hijackers were “clean skin” terrorists, without histories of activity that would get them on watch lists. And in 2002, an MIT study (the “Carnival Booth“) showed how passenger profiling failed as a security measure. Attackers could “step right up” and test the system on dry runs to see if it singles them out. The same applies to watch listing.
Transferring responsibility for checking watch lists is a small step, but it brings into sharp focus that the government is now pre-screening Americans’ travel and travel plans.
There is no telling which direction this mission will creep over time. In the event of an attack on some other mode of travel — even a small or failed attack — expect the government to extend pre-approval for travel in that direction. The government will soon discover that it can run names of travelers past other lists — first dangerous wanted criminals, then wanted criminals, then “deadbeat dads,” and on down the line to people with unpaid parking tickets.
Filed under: Foreign Policy and National Security; Telecom, Internet & Information Policy
Limiting the TSA’s Use of “Strip Search Machines”
I wrote here in February about the push and pull over “strip search machines,” also known as “whole-body imaging” and “millimeter wave scanning.”
The question is joined: How do you maintain privacy with a technology that’s fundamentally intrusive? Maybe by using it less. This week, Rep. Jason Chaffetz (R-UT) introduced a bill to limit the use of whole-body imaging.
H.R. 2027, the Aircraft Passenger Whole-Body Imaging Limitations Act of 2009, would place several limits:
- Whole-body imaging could not be the sole or primary method of screening a passenger, and it could only be used as a follow-up to other methods like metal detection.
- Passengers would have the right to opt for a pat-down search instead of whole-body imaging.
- Passengers subject to whole-body imaging would have to be provided information about the technology and the images it generates, on privacy policies, and the right to have the pat-down search instead.
- Images of passengers generated by whole-body imaging technology could not be stored, transferred, shared, or copied in any form after the passenger has passed through the security system.
Filed under: Foreign Policy and National Security; Telecom, Internet & Information Policy
TSA Intimidates Political Activist Traveler
Thanks to ever-improving technology, we have a record of what can happen when Americans try to assert their rights against government officials.
The video is a bit ponderous, but when they play the tape of TSA agents interrogating a young political activist who wishes to exercise his right to remain silent, it’s riveting and offensive.
Filed under: Foreign Policy and National Security; Law and Civil Liberties; Telecom, Internet & Information Policy
The TSA Strip-Search Machines
USA Today reports that the Transportation Security Agency is replacing metal detectors in some airports with body scanners (sometimes known as “strip-search machines”).
This doesn’t sit right with many people.
The TSA has done a questionable job so far of informing the public about what the machines do and – most importantly – of the fact that they’re optional.
Back in October, St. Petersburg Times columnist Robyn Blumner wrote about her experience.
As I stepped out of the virtual strip-search machine I immediately felt a shock wave of humiliation and intrusion, particularly as I looked around the security area and realized I was the only female traveler around and the only person “randomly” selected. The TSA agent hadn’t bothered to explain that I had the right to decline and submit to a pat-down by a female agent instead — a choice I would have taken.
A friend wrote me the other day to tell of her recent experience:
For the past year I’ve been reading stories about new machines being tested by TSA at airports which x-ray or wave scan passengers in order to detect explosives or other items hidden under one’s clothing. I’ve been horrified by these stories and the accompanying sample pictures which show a pretty detailed picture of the person’s body parts. I think the use of this technology is a gross violation of the right to privacy, particularly when used randomly on passengers for no probable cause or even reasonable suspicion of any wrong doing.
. . . .This past Sunday in Miami, . . . after going through the normal metal detector, a TSA agent had me enter a machine which looked similar to the puffer machines (explosive trace portals) from the outside. He told me to put my feet on two premarked spots. The door closed, and an internal panel of the machine rotated part of the way around my body. Then the machine opened, and he had me turn, put my feet on different preprinted places, the door then shut, and the panel rotated around my body again. All the while I had to keep my arms raised.
My hunch and a subsequent internet search confirmed that TSA is using millimeter wave body-imaging technology at the Miami International Airport. I saw a picture of the machine I was lead through. However I also read on the TSA website that use of this technology is supposed to be VOLUNTARY. Several places on the TSA website describe it as an alternative OPTION available for passengers.
. . . .
At no point did the TSA agent tell me what the machine was doing. I was not told of any other options available to me such as a pat down or wand. There were no signs informing passengers that they were being x-rayed/wave scanned for viewing of them naked at a remote location.
I never would have willingly entered that machine had I known in advance what it was. In my opinion, this technology should not be used at all, but if it is, TSA needs to do a better job on site of disclosing its actions and the capabilities of its equipment. TSA also should make advising passengers of their rights a high priority.
I’ve corresponded with Peter Pietra, the TSA’s Privacy Officer, and he disputes the absence of signs at the Miami airport. I think he’s done a creditable job of trying to build privacy protections into this system. You can find information on the millimeter wave strip-search technology here and here.
But maybe it’s not enough. We’re talking about trying to maintain privacy with a technology that’s fundamentally intrusive.
Back to Robyn Blumner:
Here is the inevitable: You give people with routine jobs the ability to rummage around in other people’s intimate lives — innocent people who are not suspected of anything — and bad stuff happens. Privacy goes out the window, boys will be boys, the rules, law and even the Constitution don’t stand a chance. Titillation trumps training, at least for some.
Why must we fight about this? Because we transferred so much more responsibility for airline security to the government in a knee-jerk reaction to the 9/11 attacks. This was a bad idea, for reasons I discussed at length in a March 2005 debate about airline security with Reason’s Bob Poole.
Instead of this lumpy, government-provided airline security, I said, “Airlines should be given clear responsibility for their own security and clear liability should they fail. Under these conditions, airlines would provide security, along with the best mix of privacy, savings, and convenience, in the best possible way.”
TSA is not balancing all these interests well. Government agencies are terrible at responding to consumers compared to businesses, whose bottom lines rely on it. As I said in the Reason piece, the fix to this problem is to rethink aviation security from the ground up. The TSA should be eliminated.
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