TSA Racial Profiling May Hide Larger Constitutional Problem

from the oops dept

The NY Times had an article recently about accusations of racial profiling by the TSA at Boston’s Logan airport. There’s apparently a pilot program going on at the airport to do more “behavior detection” with the TSA. This is the security model that is often associated with Israel’s airport security, and which some have argued should be adopted in a more widespread fashion. Others have pointed out problems with such a system, including the fact that without significant training, “behavior detection” reverts quite quickly to “racial profiling.” That appears to be the case in Boston.

Furthermore, two years ago, Bruce Schneier reasonably pointed out that behavioral profiling did not seem very good at finding terrorists, but did uncover criminal behavior unrelated to airplane security:

It seems pretty clear that the program only catches criminals, and no terrorists. You’d think there would be more important things to spend $200 million a year on.

Again, that seems to be what’s happening in Boston, as the efforts have turned up some criminal behavior. And, apparently, that’s by design. Because buried deep within the NY Times article was this tidbit:

Officers said managers’ demands for high numbers of stops, searches and criminal referrals had led co-workers to target minorities in the belief that those stops were more likely to yield drugs, outstanding arrest warrants or immigration problems.

[….] The officers identified nearly two dozen co-workers who they said consistently focused on stopping minority members in response to pressure from managers to meet certain threshold numbers for referrals to the State Police, federal immigration officials or other agencies.

The stops were seen as a way of padding the program’s numbers and demonstrating to Washington policy makers that the behavior program was producing results, several officers said.

In other words, TSA managers — apparently in an effort to make the program look good to superiors — are putting pressure on TSA line agents to turn up exactly what Schneier suggested: some form of criminal behavior just to make the program look good. That’s leading lazy TSA agents to just focus on doing searches of minorities, as they believe that they’re more likely to find some sort of criminal activity completely unrelated to airplane security.

Beyond the blatant problems of racial profiling, some of the news here highlights a potentially larger problem with airport searches. As Julian Sanchez points out, the comments above suggest not just that the focus is on criminal behavior rather than security, but also that there’s a quota system in place.

That could present a serious legal problem for the basis of TSA searches. After all, a series of lawsuits that established the legality of TSA airport searches focused on the fact that they were specifically designed to keep airplanes (and those on board them) safe rather than to uncover criminal activity. An excellent summary article on BoardingArea.com explains the cases that made such searches legal. Here’s a snippet that covers some of the key points:

In 1973 the 9th Circuit Court rules on U.S. vs Davis, 482 F.2d 893, 908, there are key pieces of wording that give the TSA its power to search essentially any way they choose to. The key wording in this ruling includes “noting that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.”

U.S. vs Davis goes onto to state “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.”

U.S. vs Davis was upheld by the 9th Circuit Court in 1986 in U.S. vs Pulido-Baquerizo, 800 F.2d 899, 901 with this ruling “To judge reasonableness, it is necessary to balance the right to be free of intrusion with society’s interest in safe air travel.”

Except… as the case in Boston shows, the searches are going well beyond that “essential administrative purpose,” and are now being used for general law enforcement. It’s at that point that they clearly violate the 4th Amendment, as they’re creating general law enforcement searches without proper cause or warrants. It seems that someone who was searched in Boston under these conditions could now make a pretty reasonable constitutional case that the search didn’t just violate their private rights, but that the entire TSA setup — when designed to search for criminal behavior — has gone beyond the limits established by the courts, and now violates the 4th Amendment.

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Comments on “TSA Racial Profiling May Hide Larger Constitutional Problem”

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sgt_doom says:

Not to worry . . .

. . .since Trapline has been implemented, and since it should be shortly interfaced with their drones/UAV networks, they can spot their “enemy” then fire at will from above.


Abraxas Corporation, the company that originally created TrapWire under its subsidiary Abraxas Applications, also has significant ties to the CIA. The company was founded by Richard ?Hollis? Helms in 2001, two years after he left the CIA where he had worked for nearly 30 years. Many of the company?s past employees and management have worked at the CIA or other intelligence agencies. In fact, Tim Shorrock notes in his 2008 book Spies for Hire that so many employees of the CIA were thought to be going to work for private companies like Abraxas that in 2005 CIA Director Porter Goss had to ask the company to stop recruiting in the CIA Cafeteria at Langley. The Los Angeles Times reported in 2006 that Abraxas had a contract from the CIA for developing front companies and false identities for the Agency?s nonofficial cover (NOC) program. The company and its work are so secretive that Shorrock reportedly called the company for comment and was told, ?Sir, we don?t talk to the media.?

? the president and one of the founders of the company, Dan Botsch, ?served 11 years as an Intelligence Officer with the Central Intelligence Agency, focusing on Russian and Eastern European affairs.? Michael Maness, the company?s business development director, served over 20 years with the CIA, ?where he directed counterterrorism and security operations in the Middle-East, the Balkans and Europe. As a senior operations officer and field operations manager, he was instrumental in combating Al-Qaeda?s operational units in the immediate wake of the September 11 terrorist attacks.? Michael K. Chang, the company?s director of operations, served for ?12 years with the Central Intelligence Agency as a counterterrorism operations officer and security officer? and even acted as personal security for the Director and Deputy Director of Central Intelligence.






:Lobo Santo (profile) says:

Re: Tertiary Function!

On the other hand, it’s not as though laws were ever really in place to protect people (not for the last 70 years or so).

If somebody with power and influence wants you gone, your crime will be invented and your fate is sealed.

Nowadays, the government has decided it wants to be able to do the same, and they’re making it all “nice and legal” so you can be searched without a warrant, your domicile can be searched without a warrant, you can be held indefinitely for no expressed reason without trial, and you can be killed (by drone!) for no expressed reason.

Wait, why do they want more laws…? Are the current one’s just too inconvenient?

Anonymous Coward says:

Re: Re:

Someone already started a petition criticizing the TSA and it reached like 22,000 signatures on whitehouse.gov considerably before the deadline and the white house apparently took down the petition before it reached the required 25,000 threshold.


Mike Masnick (profile) says:

Re: Re: Re:

Someone already started a petition criticizing the TSA and it reached like 22,000 signatures on whitehouse.gov considerably before the deadline and the white house apparently took down the petition before it reached the required 25,000 threshold.

That story is wrong. EPIC miscalculated when the time ran out. It didn’t reach the threshold by the deadline and only then did it come down.

outgoolged says:

But isn’t this what law enforcement has always done — use a phoney rationale as a subterfuge for extending its legal authority?

Like warrant-less police searches resulting from supposedly seeing something illegal during an unplanned emergency action?

Or subjecting a prisoner –including those in solitary confinement– to painful body-cavity searches multiple times a day, ostensibly for purely “security” reasons. (this was reportedly a routine “soften ’em up” tactic at Guantanamo and Bagram)

And of course the trump card for any illegal police action is by claiming to “protect children” or “prevent terrorism” – a well-worn Trojan-horse that can been adapted for most any circumstance.

That Anonymous Coward (profile) says:

The truly sad thing is, this is how EVERYTHING works now.
Meet the metric to preserve your budget.
Dump millions into untested tech that doesn’t do what it promised, then warehouse the machines. If anyone sniffs around, pretend they don’t exist.

The idea of holding budgets hostage is disturbing and needs to be stopped. We need to stop thinking if we just throw money at it, the situation is better.

The TSA is much better at keeping themselves employed and creating a larger boondoggle than stopping terrorists, wasn’t this the agency that to highlight how safe they kept us posted a top 25 stops or something and a major catch on the list was someone who didn’t want to throw his soup out.

11 months ago I saw a tweet that still is true today…
A twitter retweet I saw earlier in the day seems fitting…
@kmactane – For 9/11 this year, instead of a retrospective or a memorial, can I just have my civil liberties back?

We let the terrorists win, we have destroyed society. No one trusts “those” people anymore. People openly and readily blame everything on people who are “different”. We live in a police state, egged on by media out to make sensational claims first… true or not.
America has become a xenophobic, religious run state.
Its like Iran without having to face Mecca several times a day.

Anonymous Coward says:

Re: Re:

Blaming religion for any of the US’ current problems is just letting your own feelings about religion blind you.

The issues lie solely with the idiots in charge, the idiots who own companies that buy advertisements for those idiots’ election campaigns, and most of all the idiots who actually believe those ads and vote for them.

Those idiots are all too stupid to know the difference between a Bible verse and one of Aesop’s fables. The actual religion itself has nothing to do with it; if idiots weren’t being idiots about one thing, they’d be idiots about another.

That Anonymous Coward (profile) says:

Re: Re: Re:

We allow our elected leaders to waste time, money, breath on appeasing certain religious views by imposing their choices on everyone.

Last time I looked we had tons of issues in this country, but the issue that keeps coming up is allowing 1 group to decide what happens with a womans reproductive organs.

We are saps to accept this, but the system has been rigged for the liar you know vs the liar you don’t know yet. People care more about the unborn, than making sure there is a safety net to help them when they are born.

Religion is an amazing cover for this pandering.

And yes I do take issue with religion because it is the excuse used over and over and accepted by so many.

We ignore serious issues to appease a small vocal group, it is time we take our Government back and focus on the real issues. Stop trying to assign blame for the problem, and just fix the damn thing already.

Anonymous Coward says:

I bet content industry is salivating...

Imagine having TSA eventually go through your phone, mp3 player, tablet, laptop, and anything else you have capable of copyright infringement…

And then question whether you have legally purchased all the content you are carrying with you as you get ready to board the airplane…

And just like all the liquids and sharp instruments that people willingly throw away at TSA checkpoints to save time, I wonder if the TSA won’t be acquiring large numbers of electronic devices with questionable content on them in the very near future.

I bet the content industry is overjoyed with the possibility that they could get this to occur!

Anonymous Coward says:

Re: Re: I bet content industry is salivating...

While your boycott is admirable and positive action (in a drop in the ocean kind of way) it can’t protect you from 4th amendment violations, and won’t stop the MPAA or RIAA from simply claiming copyright ownership of anything they feel like.
Notice how DMCA reqs are “signed” by “someone” claiming the info is accurate under penalty of purgery?

The MPAA or RIAA will just say the content is theirs. And you can pay a settlement or go to court. Either way it’s expensive, whether you win or lose.

Anonymous Coward says:

Re: Re: Re: I bet content industry is salivating...

It seems like a lot of problems with the law are caused by the sheer cost of being sued. Large companies are exploiting it to crush would-be competitors.

Of course, it won’t last forever. Barring unexpected events, I’d say that technological progress (e.g., advances in AI and speech recognition leading to “virtual lawyer” apps for smartphones) will eventually reduce the cost of being sued to near zero, probably within the next 5 or 10 years.

Fisher1949 (profile) says:

TSA's Profiling Problem

This is the third time that the few remaining decent TSA workers have exposed TSA management for these illegal profiling schemes. These front line TSA screeners have also spoken out against the corrupt management that is forcing them to engage in this sick circus. They know as well as anyone else that groping a six year old and strip searching Grandma doesn?t keep anyone safe and only hands another victory to Al Qaeda.

There is plenty of evidence, including these three profiling incidents and the mass firings of screeners in Ft. Myers, Hawaii and Ft Lauderdale, that much of TSA management has become populated with perverse and corrupt people and no one is a better witness to this than the TSA workers who expose these managers. If this is not stopped at this point the decent screeners who dislike being ordered to grope and humiliate passengers needlessly will quit and the thugs managing the agency will fill their ranks with abusive bullies. At that point security will become unbearable and America will be in very bad place.

The behavior detection program has been shown to be hocus-pocus used to conceal a drug interdiction scheme. Is anyone really stupid enough to believe that TSA can train a fast food worker to read minds in six weeks?

This is the third major incident in this program in a year involving racial profiling and harassment, illegal interrogations and unlawful searches and there have been others that received less exposure. TSA investigated themselves in the incidents in Newark and Hawaii and found they were innocent. No one was fired or prosecuted for their illegal searches and harassment of innocent people. What a surprise.

Where does this stupidity stop?

In the past two months 35 TSA workers fired or arrested and 66 more disciplined for misconduct on the job. A known pedophile, Thomas Harkins, was exposed in May but remains employed as a TSA Supervisor in Philadelphia. There were a total of 97 TSA workers arrested in the last 20 months including 12 arrested for child sex crimes, over 26 for theft, 12 for smuggling contraband through security and one for murder.

This is precisely the problem with TSA, no accountability when they exceed their authority and those in management are never fired. Even police are subject to prosecution by victims. Not so for TSA employees and this must change.

The TSA management and screeners responsible for this illegal activity should be prosecuted and the agency sued for billions.

Anonymous Coward says:

Re: TSA's Profiling Problem

The TSA management and screeners responsible for this illegal activity should be prosecuted and the agency sued for billions.

It should happen, but unfortunately it won’t. The powers that be are terrified that if they do anything to the TSA’s “security” routines, they’ll be attacked by their political rivals for being “soft on terrorism”.

Lawrence D'Oliveiro says:

?Terrorists? ≠ ?Criminals??

So terrorists are not considered criminals now? Is what they?re doing not wrong, but some kind of super-wrong? Are they not just villains, but supervillains, is that it? So ordinary criminal laws and policing aren?t enough to deal with them, we need super-laws and super-policing … super-heroes, even?

This is what happens when you start confusing your own movies with reality.

Aerilus says:

I know nothing about behavior screening but it seems like at the root it would be a good idea. it would take years of training to mask the stress and psychological upheaval that would be going on in someones mind that was about to commit such a grave offense. it seems like it would be a good idea to try to train tsa officers just like police officers are trained. if you are acting irregular when pulled over a good police officer will most likely notice that you are acting disproportionately upset to whatever minor offenses you were pulled for. there are a number of queues that moderately intelligent screeners could be trained to look for. or simple questions that could be rotated and easily followed up on like “whom are you going to go see?” “oh you are visiting family can you provide me with there name address and phone number?” call the number google the address and ask a completely different question the next time around. it seems like it could be a very good approach and it is ashamed that the brainpower is not there so it is just devolving into a political low hanging fruit fiasco.

PT (profile) says:

Re: Re:

That’s all very well, but police officers get training and experience on the job with actual, you know, offenders. Given an actual airline terrorist count of approximately 0.25 per year, none having boarded at a US airport since 2001, none of these TSA goons has ever seen a bona-fide terrorist to be trained on. They have, in fact, no useful function to perform at all. They need to be fired and the TSA disbanded – don’t go inventing jobs for them.

Anonymous Coward says:

While you guys, “talk” about it, your rights continue to be shat upon.

The government will now go on to do whatever they damn well like, you know why, because there was no nationwide protests, no uproar, when things like the patriot act, ndaa, lobbying and corporate bloody citizenry came and went….. the guys who pushed for these bills, will now feel untouchable and brazen, and suggest even more fucked up things.

The American people can throw out the constitution now, it doesnt mean shit to your government

Michael says:

It’s only a matter of time before they bring the TSA security theatre to every metro and subway system. As a matter of fact, they already have Viper doing some bus stops.

Here’s the TSA violating truck drivers’ 4th Amendment rights: http://www.youtube.com/watch?v=13KLp4aoOq0

Here’s the TSA + Tampa police doing the same to bus riders (Operation Viper): http://www.youtube.com/watch?v=X4G-0g9PRrE

And the same thing in Houston, TX: http://www.youtube.com/watch?v=eLJxJFsLxgE

9/11 was the best thing that could’ve happened to the government, giving themselves a justification to extend their powers at the expense of our rights.

“In other words, TSA managers — apparently in an effort to make the program look good to superiors — are putting pressure on TSA line agents to turn up exactly what Schneier suggested: some form of criminal behavior just to make the program look good. That’s leading lazy TSA agents to just focus on doing searches of minorities, as they believe that they’re more likely to find some sort of criminal activity completely unrelated to airplane security.”

Shades of the FBI creating and then foiling terrorist plots for self-preservation.

It’s clear that all of this security nonsense has nothing at all to do with public safety. We’re witnessing the destruction of the USA from within, end of story.

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