It's typical to preface a Techdirt article, for me at least, by backtracking to a bunch of articles on related subject matter. I'm not going to do that with another piece on the TSA. Not because there isn't enough material to choose from. Oh no, there's simply too much of it, so if you want to see insanity in its most naked form (this statement assumes you don't live next to Gary Busey), just click here and you won't be disappointed. That said, even those outraged by the pure idiocy of the TSA's post 9/11 production of security theater will normally decry it as a massive waste of money or a gross encroachment on civil liberty. And they're right on both counts. Still, the more striking fact should be that the TSA, an agency with the mission of keeping us alive, is causing death.
Compare the dangers of air travel to those of driving. To make flying as dangerous as using a car, a four-plane disaster on the scale of 9/11 would have to occur every month, according to analysis published in the American Scientist. Researchers at Cornell University suggest that people switching from air to road transportation in the aftermath of the 9/11 attacks led to an increase of 242 driving fatalities per month—which means that a lot more people died on the roads as an indirect result of 9/11 than died from being on the planes that terrible day. They also suggest that enhanced domestic baggage screening alone reduced passenger volume by about 5 percent in the five years after 9/11, and the substitution of driving for flying by those seeking to avoid security hassles over that period resulted in more than 100 road fatalities.
Yup, you read that correctly. The TSA, in an attempt to keep us safe through the wonders of naked scanners and light petting, has pushed people away from air travel and out onto the road...where they're dying. I suggest we all stop thinking of the TSA as just a waste of money and add "death-causer" to the list. The absurdity of this fact is striking, to say the least. This is a government agency that has failed on every measurable level, from cost effectiveness, to its terrorist-catching-batting-average, to the blatant offense it causes to American ideals... and now we know people are dying as a result of all this nonsense.
This is just another symptom of our overreaction to the constant drumbeat of the Islamic-extremism threat. While death of American citizens is chief amongst my concerns, the economics are flat out insane.
According to one estimate of direct and indirect costs borne by the U.S. as a result of 9/11, the New York Times suggested the attacks themselves caused $55 billion in "toll and physical damage," while the economic impact was $123 billion. But costs related to increased homeland security and counterterrorism spending, as well as the wars in Iraq and Afghanistan, totaled $3,105 billion. Mueller and Stewart estimate that government spending on homeland security over the 2002-11 period accounted for around $580 billion of that total.
Three Trillion dollars in response to a single, albeit terrifying, event. I'll excuse us all, myself included, for the first year or so after 9/11, a time that I remember quite well in that I was scared. Much in the same way I'm legitimately frightened at a horror movie when the masked weirdo with the knife rips open the shower curtain to stab some barely memorable woman. But then, a couple minutes later, my heartbeat returns to normal and I remember that it's all just a movie. This holiday season, as all of us endure the uptick in our travel schedules, remember that. It's time for the TSA budget to reflect ongoing reality, not the single terrifying moment.
We'd heard a number of reports about how the TSA was already either retrofitting the various naked scanners or moving on to less privacy invasive versions, but there were two interesting points to come out some Congressional hearings on the devices yesterday. First, apparently there is some concern that the makers of the Rapiscan machine (and, yes, it still amazes me that anyone thought that was a good name), OSI Systems, may have "manipulated" tests in order to claim that the machines did not invade travelers' privacy:
The company “may have attempted to defraud the government by knowingly manipulating an operational test,” Representative Mike Rogers, chairman of the House Transportation Security Subcommittee, said in a letter to Transportation Security Administration chief John Pistole Nov. 13. Rogers said his committee received a tip about the faked tests.
OSI, of course, is denying it, but this is the same company that also apparently ran into problems last year when maintenance reports suggested radiation levels 10 times as high as promised.
While it's a good thing that privacy violating machines aren't being used, it raises serious questions about why they were purchased and put into use in the first place -- and done so without ever taking comment from the public, as is required under law. Perhaps if they had actually done that, they would have avoided wasting so much taxpayer money on machines that violate everyone's privacy.
from the these-people-are-supposed-to-make-us-feel-safe dept
You would think, given that "Security" is literally the organization's middle name, that the Transportation Security Administration (TSA) would actually have some sort of clue about the basics of security. Apparently not. This week, someone noticed a ridiculous security flaw in the TSA's pre-screening process for "expedited" lines. This is the program where frequent travelers can pay extra to get them in special faster security lines, and where they can skip some of the worst aspects of airport screening: they don't have to take their laptop out, or take off their shoes or belt, and they can bring more liquid than mere peons.
Of course, security experts long ago pointed out that any such system now becomes a target for terrorists, who can focus on getting into that special line and use that lesser security to cause trouble. One response to this is that, even for passengers who qualify for such a program, they're still subject to "random" conventional screenings. However, aviation blogger John Butler realized that the bar code printing on your boarding pass reveals whether or not you'll be "selected" for further scrutiny, and that it's not difficult to check ahead of time to see if you'll have to go through stricter security because the TSA has apparently never heard of encryption.
As Chris Soghoian pointed out, knowing this info ahead of time could allow plotters to plan accordingly:
“If you have a team of four people [planning an attack], the day before the operation when you print the boarding passes, whichever guy is going to have the least screening is going to be the one who’ll take potentially problematic items through security,” said Soghoian, now a senior policy analyst at the American Civil Liberties Union. “If you know who’s getting screened before you walk into the airport, you can make sure the right guy is carrying the right bags.
“The entire security system depends on the randomness,” he said. “If people can do these dry runs, the system is vulnerable."
I guess, when you've always been in the business of "security theater" rather than actual security, it shouldn't come as a surprise that you don't know the first thing about basic security.
While the TSA has already declared themselves this nation's official Humor Police, all while likely profiling based on race, the agency constructed to keep us safe while we fly has another problem to deal with: the thieves that wear the uniform.
ABC News recently conducted an investigation in which they packed travel bags with cash and iPads and took them through security at several major airports, while also going out of their way to leave iPads behind at security checkpoints as well. As the report notes, the bags went through without a problem and most of the iPads were returned per TSA policy. But not all of them.
In case you can't see the video, a TSA agent was taped at work handling the iPad ABC had left behind, and simply decided to take it home with him. When confronted at his home by ABC's Brian Ross, Agent Andy Ramirez denied he had the device until Ross initiated the iCloud application used to track the iPad and its audible alert. Ramirez then produced the iPad and valiantly blamed having it on his wife, who was kind enough to stand next to him and not punch him repeatedly in the testicles on camera.
It may be tempting to simply write this off as the occasional occurrence of bad actors in any sector of any industry, but theft by TSA agents is likely more widespread a problem than you realize. Nearly 400 TSA agents have been fired specifically for theft since 2003. One would expect, of course, that the number of agents fired represents a fraction of those that have actually stolen something.
And to think, they've done all of this thieving without managing to catch a single terrorist.
Could the signaling be more incoherent? The hearing suggests both that unknown horrors loom and that we should shrink the most visible federal security agency.
Lace up your shoes, America—we’re goin’ swimmin’!
Our federal politicians still can’t bring themselves to acknowledge that terrorism is a far smaller threat than we believed in the aftermath of the September 11, 2001, attacks, and that the threat has waned since then. (The risk of attack will never be zero, but terrorism is far down on the list of dangers Americans face.)
The good news is that the public’s loathing for the TSA is just as persistent as stated terrorism fears. This at least constrains congressional leaders to make gestures toward controlling the TSA. Perhaps we’ll get a “smarter, leaner” overreaction to fear.
Public opprobrium is a constraint on the growth and intrusiveness of the TSA, so I was delighted to see a new project from the folks at We Won’t Fly. Their new project highlights the fact that the TSA has still failed to begin the process for taking public comments on the policy of using Advanced Imaging Technology (strip-search machines) at U.S. airports, even though the D.C. Circuit Court of Appeals ordered it more than a year ago.
The project is called TSAComment.com, and they’re collecting comments because the TSA won’t.
The purpose of TSAComment.com is to give a voice to everyone the TSA would like to silence. There are many legitimate health, privacy and security-related concerns with the TSA’s adoption of body scanning technology in US airports. The TSA deployed these expensive machines without holding a mandatory public review period. Even now they resist court orders to take public comments.
TSAComment.com has gotten nearly 100 comments since the site went up late yesterday, and they’re going to deliver those comments to TSA administrator John Pistole, Homeland Security Secretary Janet Napolitano, and the media.
The D.C. Circuit Court did require TSA to explain why it has not carried out a notice-and-comment rulemaking on the strip-search machine policy, and assumedly it will rule before too long.
Getting the TSA to act within the law is important not only because it is essential to have the rule of law, but because the legal procedures TSA is required to follow will require it to balance the costs and benefits of its security measures articulately and carefully. Which is to say that security policy will be removed somewhat from the political realm and our incoherent politicians and moved more toward the more rational, deliberative worlds of law and risk management.
Hope springs eternal, anyway…
There could be no better tribute to the victims of 9/11 than by continuing to live free in our great country. I won’t shrink from that goal. The people at TSAComment do not shrink from that goal. And hopefully you won’t either.
It also blames the fact that there had been "significant personnel losses" in the group of folks responsible for obeying the order, but insisted that everyone else in that group was really (really!) focused on obeying the order, and they'd get around to it at some point. Really. They promise.
Petitioner offers no basis whatsoever for its assertion that TSA has delayed in
implementing this Court’s mandate. On the contrary, as the Sammon Declaration
demonstrates, TSA has been keenly aware of the importance of implementing the
Court’s directive, and has given high priority to the AIT rulemaking. Despite
“significant personnel losses” in the group of economists within TSA charged with completing the regulatory analysis... the agency began on the heels of the
Court’s ruling the process of preparing the documents necessary for notice-andcomment
rulemaking, and has devoted almost all of the staff available to conduct the
required economic analysis to its expedited completion, even going so far as to hire
contract consultants to accelerate its completion despite unforeseen personnel losses
Later, it claims:
In sum, there has been no "waiting" and no "delay."
Other than the fact that we're still waiting, you mean?
The TSA's "behavior detection" program continues to roll out, unimpeded by accusations of racial profiling or the fact that 725,000 travelers have been questioned without turning up a single terrorist. This extra step in the ongoing, ever-expanding War at Home on Terror is bringing the fun of living in a dictatorship to the unsuspecting citizens of a federal republic.
Traveling into or out of the country used to be the one of the few situations in which American citizens could expect extra questions to be thrown their way. Apparently, we're now defending internal borders to prevent terrorists from crossing state lines unimpeded. In addition to long-running security theatrics already in place at our nations' airports, TSA agents are now throwing a barrage of instrusive questions at flyers as they travel from state to state.
The agent then turned to me with grin that was a bit perky for even my taste given the early hour. "So where are you folks off to?" he energetically inquired.
I like to think that I'm a friendly person, so I answered him, expecting a brief innocuous exchange about the Washington DC heat and the scourge of Capitol Hill gridlock. Instead, the agent responded to my answer with a barrage of questions about where in Vermont we had stayed, how long we had traveled, and why we had traveled there. I could feel a suspicious expression involuntarily creep across my face. The New Englander inside me was screaming "you don't know this person from a hole in the wall and you certainly don't want to divulge to him the details of your family vacation!" And yet it seemed that the more discomfort I expressed, the more persistent the agent's questioning became, following us down the line, grilling me unrelentingly about our vacation plans and baggage status.
Maybe the TSA agent was just being friendly? The writer's husband suggested as much. Despite the fact that the word "friendly" has rarely, if ever, been used in the same sentence as "TSA agent," there's always the small possibility that it's just some welcome humanity showing through the officious facade.
Here's the problem, though. It's nearly impossible for the average human being to chat normally with someone who has the power to indefinitely detain or otherwise screw up their travel plans for any number of nebulous "violations." There's no such thing as an innocuous or friendly question when it comes to an agency with a reputation for acting irresponsibly, vindictively and ignorantly, depending on the situation. No one is ever going to feel comfortable just handing out additional personal information, no matter how anecdotal, to someone who can use any misstep as an excuse to search, detain or otherwise inconvenience anyone and everyone.
At that point she asked me what my business would be in Grand Rapids.
"I'm headed home," I replied.
Then she wanted to know where home was. That's when the mental alarms went off and I realized I was being interrogated by Big Brother in drag. I asked her why the federal government needed to know where I was going and what I would be doing. She explained that the questions were part of a new security "pilot program."
I then told her I am an American citizen, traveling within my own country, and I wasn't breaking any laws. That's all the federal government needed to know, and I wasn't going to share any more. Not because I had anything to hide. It was because we live in a free country where innocent people are supposedly protected from unwarranted government intrusion and harassment.
At that point the agent yelled out, "We have another refusal." One of my bags was seized and I was momentarily detained and given a hand-swab, which I believe was to test for residue from bomb-making materials.
I passed the bomb test and was told I could move on, but I hung around a moment and told everyone within listening range what I thought about this terrifying experience.
Notice how quickly asserting your rights gets you branded as a troublemaker by those "protecting" the airport. The intrusive questioning is the TSA's "behavior detection" at work. So far, it seems to be best at detecting racists within the TSA's ranks and maintaining an overly-close relationship with other law enforcement agencies.
This interrogation of citizens who have never crossed a border isn't necessarily a new thing, but in the past it was definitely an exception rather than the rule. Crossing national borders would usually result in some form of questioning beyond "Are you an American citizen?" Outside of our airports, the Department of Homeland Security is partnering with the Border Patrol to set up checkpoints with the intent of stopping and searching vehicles traveling internal highways 40-50 miles from any border crossing. This falls within the "Constitution Free Zone" where the courts have permitted these "administrative" checkpoints to operate, but solely for the purpose of protecting the nation's borders. They are not to be used for other law enforcement purposes, like conducting general drug searches.
As can be expected, the checkpoints have become "general purpose." Suspicionless searches are now the norm, with many drivers being routed to the "secondary" for additional questioning. None of this is necessary, useful or even particularly legal, but they continue to operate simply because US citizens are generally cooperative, even when their rights are being violated. If you don't cooperate with your own violation, as in the case with Gunn above, and the video below, the ones doing the violating (under the auspices of "security") treat the assertive citizen like he's being unreasonable and possibly a threat.
While the US is far from an actual police state, the encroachment on our rights shows no sign of abating. The TSA defends its severely flawed "behavior detection" system as being a crucial and useful part of law enforcement as a whole. Defenders of DHS checkpoints are quick to cite criminal actions by non-citizens and the general hazy threat of "terrorism" in support of their activities. No one really expects anyone in power to say "Wait, this is going too far," and start rolling back authority and legislation. But someone in power should really start questioning why it became acceptable in this country, a nation built on individual freedom, to interrogate citizens simply because they're traveling from one internal destination to another by vehicle.
While we were just discussing an accusation against the TSA for racial profiling (GASP!), did you know that they were also the official state-sponsored fashion and humor police? I mean, who couldn't see these guys adjudicating your local fashion show?
TSA uniforms: like Michael Jackson, but creepier Image Source. CC BY-SA 2.0
Back in 2007, I designed a shirt for Woot! that featured a screaming eagle clutching an unlaced shoe and a crushed water bottle, surrounded by the motto MOISTURE BOMBS ZOMG TERRORISTS ZOMG GONNA KILL US ALL ZOMG ZOMG ALERT LEVEL BLOODRED RUN RUN TAKE OFF YOUR SHOES. Among the lucky owners of this garment is Arijit "Poop Strong" Guha, who proudly wore it this week as he headed for a Delta flight from Buffalo-Niagara International Airport to his home in Phoenix.
But it was not to be. First, the TSADelta agents questioned him closely about the shirt, and made him agree to change it, submit to a secondary screening and board last. He complied with these rules, but then he was pulled aside by multiple Niagara Frontier Transportation Authority cops, more TSA, and a Delta official and searched again.
Apparently the new terror plot is to make you laugh so hard your face explodes
Now, I'll restate it again, Arijit had already gone through the TSA screening when he and his wife were then approached by Delta employees at the gate who informed him that he had committed the crime of making other passengers "uncomfortable". When Arijit informed the Delta employees that he was wearing the shirt specifically to mock the security theater we call an airport these days, he was put through another round of screening at the gate by several TSA and local agents and then told that he would be allowed to board. The Delta pilot, catching wind of this, requested Arijit not be allowed to board, because laughter would not be tolerated on his enormous hunk of flying metal. Oh, and they also refused to allow his wife to board the plane too. No reason was apparently given for this, but I'm guessing there may have been some plaid mixing with pin-stripes in her outfit, and the pilot found it to be lacking in fabulousness.
“Certainly he wasn’t implying that dark-skinned people are not real Americans and that white people are the only true Americans,” Arijit writes in part of his snark-filled synopsis. “Fortunately, Mark’s request was denied. Apparently, someone at NFTA recognized this bigoted meathead for the bigoted meathead he was and that nationality is simply a concept that exists solely on paper and cannot be discerned from just looking at someone.”
And yet he still wasn't allowed on the plane. Was it because of his t-shirt? Was it because the motherfucking eagle on it caused concern amongst passengers? Or, as has been previously accused, was it because too many TSA agents find brown-skinned people suspicious and alarming?
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.