Today’s blog was researched and written by a “concerned Department of Homeland Security law enforcement officer.”
How far can consent be stretched?
The Transportation Security Administration (TSA) can be a lightning rod in the ever-evolving world of homeland security. This is true for the agency and for the much larger operational concept it embodies. It is not fair to pile on, but TSA often begs for the attention with their actions and possible mission creep into other venues.
The Visible Intermodal Prevention and Response (VIPR) is one of the TSA programs that can generate questions and interesting privacy and authority discussions. According to TSA in 2007:
VIPR teams work with local security and law enforcement officials to supplement existing security resources, provide deterrent presence and detection capabilities, and introduce an element of unpredictability to disrupt potential terrorist planning activities.
Looking to expand the VIPR concept beyond the rail sector to other forms of mass transit, TSA has been reaching out to several high-volume ferry operators to provide additional security, particularly during the summer months when ridership is at its peak.
VIPR teams enhance TSA’s ability to leverage a variety of resources quickly to increase visible security in any mode of transportation anywhere in the country and are a normal component of TSA’s nimble, unpredictable approach to security.
The TSA VIPR operation at the train station in Savannah, Georgia in late February 2011 sparked another debate about the authorities and responsibilities of TSA Transportation Security Officers (screeners) and TSA Federal Air Marshals well away from the aviation environment.
Does the concept of implied consent to search apply if you wish to travel via commercial aviation and now possibly rail? The TSA employees reportedly searched adults and children at a train station after they departed the train. These reported searches have generated concerns because the subjects had already disembarked the stated area of concern or threat (i.e., the train) that supposedly created the “justification” or need for the “consent” search in the first place.
TSA’s Blogger Bob proactively addressed the incident and concerns on the TSA blog site to explain their actions and possible error(s):
A video of Transportation Security Officers (TSOs) screening passengers at a Savannah, Georgia Amtrak station has been gaining quite a bit of attention and many are wondering why we were screening passengers who had just disembarked from a train.
We were wondering the same thing.
The screening shown in the video was done in conjunction with a VIPR operation. During VIPR operations, any person entering the impacted area has to be screened. In this case, the Amtrak station was the subject of the VIPR operation so people entering the station were being screened for items on the Amtrak prohibited items list as seen in the video.
It should be noted that disembarking passengers did not need to enter the station to claim luggage or get to their car.
Signs such as the one shown here are posted at the entrance to the impacted area.
However, after looking into it further, we learned that this particular VIPR operation should have ended by the time these folks were coming through the station since no more trains were leaving the station. We apologize for any inconvenience we may have caused for those passengers.
So by now, you’re probably wondering what a VIPR is? Is it a type of snake that we misspelled? A really cool car… Nope. It’s a team that’s made up of Federal Air Marshals, Surface Transportation Security Inspectors, Transportation Security Officers, Behavior Detection Officers and Explosive Detection Canine teams. The teams provide a random high-visibility surge into a transit system and work with state and local security, and law enforcement officials to expand the unpredictability of security measures to detect, deter, disrupt or defeat potential criminal and/or terrorist operations.
Ignoring the clear question about their “authority” to conduct searches beyond the implied consent of a passenger at an airport who wishes to fly and not drive to his destination, what is the true benefit or intention of these VIPR operations? Is there value beyond mere presence? Is this an expansion of the agency’s responsibility and authority? Does the TSA have such abundant resources that they can afford to expand well beyond the aviation environment, if even only for sporadic VIPR operations?
These questions may be unfair after the horrid results of terrorist attacks in the rail environment in Spain and England. Nevertheless, these VIPR operations may not fully conform to their primary duties in the post 9/11 environment.
Even though the word “transportation” in their agency name encompasses a larger world in the eyes of some people, should TSA employees also be operating at seaports and private marinas where broader authorities and training are required for border searches, inspections and proper interaction with the public. This is a policy and liability question for discussion by the government and its people. Where does that discussion happen? And when?
How successful has TSA been in the aviation environment, almost ten years after the 9/11 terrorist attacks? A Washington Post article, Auditors question TSA’s use of and spending on technology, raises many important concerns and questions about the benefit of the billions of dollars expended by TSA for screening:
Before there were full-body scanners, there were puffers. The Transportation Security Administration spent about $30 million on devices that puffed air on travelers to “sniff” them out for explosives residue. Those machines ended up in warehouses, removed from airports, abandoned as impractical.
But government auditors have faulted the TSA and its parent agency, the Department of Homeland Security, for failing to properly test and evaluate technology before spending money on it.
The GAO has said that the TSA has “not conducted a risk assessment or cost-benefit analysis, or established quantifiable performance measures” on its new technologies. “As a result, TSA does not have assurance that its efforts are focused on the highest priority security needs.”
“They’re adding layers of security and technology, but they need to do a cost-benefit analysis to make sure this is worthwhile,” said Steve Lord of the GAO’s Homeland Security and Justice team, who has reviewed the TSA’s purchases. “They need to look at whether there is other technology to deploy at checkpoints. Are we getting the best technology for the given pot of money? Is there a cheaper way to provide the same level of security through other technology?”
(In addition to TSA related concerns, the DHS Office of the Inspector General recently recommended that the strategic sourcing of detection equipment at DHS could help its agencies save money and standardize its equipment purchases.)
Beyond the established TSA airport screening locations, TSA conducts subsequent passenger baggage searches in the airport concourses after the passengers were already processed by their personnel. Another recent Washington Post article addressed this issue, describing the experiences of a passenger at the Seattle Seattle-Tacoma International Airport who had reportedly cleared TSA screening and was awaiting her flight.
As she waited for her flight from Seattle-Tacoma International Airport to Medford, Ore., last month, Linda Morrison noticed something unusual in the waiting area.
“A lady in a TSA uniform came over, put on her rubber gloves and went up and down the rows of seats, choosing bags to go through,” remembered Morrison, a retired corporate recruiter who lives in Seattle. “She didn’t identify herself, didn’t give a reason for the search. She seemed to be targeting larger carry-on bags.”
Morrison was stunned. She expected to be screened at the designated checkpoint area, or maybe at the gate, where the TSA sometimes randomly checks passengers as they board. But this was different. “To me, it just felt like an illegal search performed by a police state,” she said.
Ms. Morrison is not alone with her concerns. Not all air travelers concur with these expanded screening operations, according to the Washington Post article:
James Morrissey, a University of Illinois biochemistry professor and a frequent air traveler, prefers “intrusive security.” “TSA has become a law unto itself, and it routinely tramples the civil rights of the flying public,” he says. “Unfortunately, there will always be some people who will be perfectly okay with having their rights trampled in the name of security. But allowing this to happen is very disturbing to me.”
Jeff Stollman, a security and privacy consultant in Philadelphia, thinks that “annoying” better describes air travel in 2011. He’s irked by what he calls “security theater” that offers no real protection against terrorism. “I suspect that a lot of the current controls don’t really do that much to improve security,” he said.
Matthew Gast, a technology writer who works for a San Francisco-based publishing company, believes that it doesn’t matter what it’s called – it’s wrong. The TSA has gone “too far” in trying to protect us from terrorism. “I have not taken a flight since I was forced to allow a TSA agent to put his hands down my pants,” he said. “It’s the only time I felt unsafe in an airport.”
Other frequent travelers have voiced their concerns. A number of airline pilots reportedly continue to disagree with the current TSA screening procedures resulting in at least one pending lawsuit against the TSA:
Two U.S. commercial airline pilots complained in a lawsuit on Friday that new screening procedures for flight crews — scaled back after complaints by pilots — were still too invasive and violated privacy rights.
Pilots and flight crews complained the new screening exposed them to excessive radiation because they fly so frequently and that extra scrutiny for them was unnecessary because they already control the planes.
According to the TSA blog, TSA is again reviewing a more focused approach through identity based screening and a known traveler program:
For some time now, there has been much talk about implementing a Trusted Traveler program and switching to more of an identity-based approach. Good news… Administrator Pistole is on board with a known traveler approach. He spoke earlier this month at the American Bar Association and talked about his vision for this concept. You can read his remarks here.
All these articles (and the thirteen at the end of this post) raise controversial, but important questions for consideration and discussion:
- Is the mission to maintain a sufficient level of confidence in air travel by spending money for homeland security theater, or is it to provide a truly secure aviation environment? What are the cost limitations, if any, in our current economic world?
- Does it make sense to expend these very valuable and limited resources at the front door when the back doors at many airports are often wide open, given the ability of hundreds of thousands of Security Identification Display Area (SIDA) badged employees to introduce and remove all forms of contraband and other interesting items? If this threat is not fully appreciated, please spend some time with the agencies conducting smuggling and theft investigations at the airports to evaluate the enormous insider threat (the next threat?).
- Does a policy of hiring employees with significant criminal convictions and associations affect the quality of screening and/or faith in the process by the American public? Does this practice also expand the insider threat in the aviation environment?
Unfortunately, the investment of billions of dollars in technology (useful or not) and personnel at the front door of the airports may be the easier challenge to tackle at this time rather than considering the likely next threat to commercial aviation.
However, the central question I want to raise remains, how far can consent be stretched? Must we sacrifice liberty for security and to what extent? Are we really using our imagination and connecting the dots in a post 9/11 world?
Maybe we should just be quiet and patriotically remove our shoes to support homeland security theater.